**Finding the Gaps: A Comparative Analysis of Disability Laws in the
United States to the United Nations Convention on the Rights of Persons
with Disabilities (CRPD)**

# National Council on Disability 1331 F Street, NW, Suite 850 Washington, DC 20004 202-272-2004 Voice 202-272-2074 TTY 202-272-2022 Fax

# John R. Vaughn, Chairperson May 12, 2008 

**Preamble**

The purpose of this paper is to help the National Council on Disability
(NCD), and others, better understand how the Convention on the Rights of
Persons with Disabilities, if ratified by the United States, might
impact U.S. disability laws by examining the degree to which U.S. law is
consistent with the CRPD.  The paper endeavors to analyze the issue in
the way a treaty monitoring body would - to see if any area within
federal law contravenes the Convention and/or whether there are gaps
where legislation or practice might be introduced or reformed to ensure
compliance. This is not an empirical analysis. NCD does not endorse, nor
do we disclaim, the author's conclusions. At this juncture, the CRPD has
not been subjected to the scrutiny and interpretation of an
international monitoring body. The CRPD creates a Committee tasked with
reviewing regular reports of States Parties. It will ultimately be up to
that Committee to fill in the gaps and choose between competing
interpretations.

In November 2001, the United Nations General Assembly established an Ad
Hoc Committee (AHC) to "consider proposals for a comprehensive and
integral convention on the rights and dignity of persons with
disabilities." This action came after many years of advocacy by the
disability community for the inclusion of disability in the UN human
rights legal framework.

During the six years of the drafting of the Convention, the United
States provided fundamental and valued technical assistance during the
eight sessions of the Ad Hoc Committee. The U.S. delegation drew on our
nation's prolific experience with disability laws and policies in
providing guidance on the foundational principles of the Convention. In
both our mandated advisory role and that of promoting policy that
enhances the lives of people with disabilities, the National Council on
Disability (NCD) was pleased to support the efforts of the United States
in the Convention development process.

The Convention opened for signature on March 30, 2007. Since that time,
over 120 countries have signed the Convention and over 20 have ratified
it.

On March 5, 2007, NCD wrote to the President of the United
States regarding the Convention's recent adoption. In that letter, the
Council noted the Administration\'s concern that, for some countries,
the Convention will provide a baseline standard rather than provide the
full spectrum of rights available under the Americans with Disabilities
Act (ADA). We urged the President to sign the Convention to provide the
United States\' clear support for the principles of this landmark treaty
and to continue our country's tradition as a world leader for people
with disabilities. 

Following the issuance of that letter, the Council met in Chicago in
July 2007, and discussed drafting a paper to guide NCD's future work on
issues related to the Convention. This paper came about as a result of
that discussion, and is intended to serve as background for the
Council's informed decision on the merits of signing and ratifying the
CRPD, as well as an introspection of currently prevailing laws,
policies, and practices more generally. NCD also hopes that one of the
outcomes from the release of this paper will be that of focusing the
United States disability community on a discussion that will allow for
confirmation or rejection of the premises set forth in the body of the
analysis, in pursuit of a better understanding of U.S. disability law
and the Convention.

**Table of Contents**

**Executive Summary** 1

**Introduction** 8

*Preamble* 9

*Article 1* Purpose 9

*Article 3* General Principles 9

*Article 4* General Obligations 9

*Article 2* Definitions 9

*Article 5* Equality and Non-Discrimination 9

*Article 6* Women with Disabilities 10

*Article 7* Children with Disabilities 11

*Article 8* Awareness raising 11

*Article 9* Accessibility 12

*Article 10* Right to Life 12

*Article 11* Situations of risk and humanitarian emergencies 13

*Article 12* Equal recognition before the law 13

*Article 13* Access to Justice 14

*Article 14* Liberty and security of the person 15

*Article 15* Freedom from Torture or Cruel, Inhuman, or Degrading
Treatment

or Punishment 16

*Article 16* Freedom from Exploitation, Violence, and Abuse 16

*Article 17* Protecting the Integrity of the Person 17

*Article 18* Liberty of movement and nationality 17

*Article 19* Living independently and being included in the community 17

*Article 20* Personal mobility 18

*Article 21* Freedom of Expression and Opinion, and Access to
Information 19

*Article 22* Respect for Privacy 19

*Article 23* Respect for Home and the Family 20

*Article 24* Education 20

*Article 25* Health 21

*Article 27* Work and Employment 22

*Article 28* Adequate standard of living and social protection 24

*Article 29* Participation in Political and Public Life 24

*Article 30* Participation in Cultural Life, Recreation, Leisure, and
Sport 25

*Article 31* Statistics and data collection 26

*Article 32* International cooperation 26

*Articles 33-40* 26

Conclusion 31

**Appendix** 33

*Preamble* 33

*Article 1* Purpose 36

*Article 3* General Principles 37

*Article 4* General Obligations 37

*Article 2* Definitions 44

*Article 5* Equality and Non-Discrimination 48

*Article 6* Women with Disabilities 50

*Article 7* Children with Disabilities 52

*Article 8* Awareness raising 53

*Article 9* Accessibility 55

*Article 10* Right to Life 61

*Article 11* Situations of risk and humanitarian emergencies 63

*Article 12* Equal recognition before the law 64

*Article 13* Access to Justice 66

*Article 14* Liberty and security of the person 68

*Article 15* Freedom from Torture or Cruel, Inhuman, or Degrading
Treatment or

Punishment 70

*Article 16* Freedom from Exploitation, Violence, and Abuse 71

*Article 17* Protecting the Integrity of the Person 73

*Article 18* Liberty of movement and nationality 75

*Article 19* Living independently and being included in the community 76

*Article 20* Personal mobility 78

*Article 21* Freedom of Expression and Opinion, and Access to
Information 79

*Article 22* Respect for Privacy 83

*Article 23* Respect for Home and the Family 85

*Article 24* Education 88

*Article 25* Health 94

*Article 27* Work and Employment 97

*Article 28* Adequate standard of living and social protection 103

*Article 29* Participation in Political and Public Life 105

*Article 30* Participation in Cultural Life, Recreation, Leisure, and
Sport 109

*Article 31* Statistics and data collection 113

*Article 32* International cooperation 116

*Articles 33-40* 118

**Endnotes** 125

**Executive Summary**

This paper is geared toward understanding the degree to which U.S. law
(in form, spirit, and practice) is consistent with the CRPD. Because any
comparison is of necessity at times between "apples and oranges," the
paper endeavors to analyze the issue in the way a treaty monitoring body
would - to see if any area within federal law contravenes the Convention
and/or whether there are gaps where legislation or practice might be
introduced or reformed to ensure compliance. The paper finds that, as a
general matter, the aims of the CRPD are consistent with U.S. disability
law. For the majority of articles, U.S. law can be viewed as either
being of a level with the mandates of the Convention or capable of
reaching those levels either through more rigorous implementation and/or
additional actions by Congress. However, this paper also identifies
several CRPD Articles that illustrate significant gaps between United
States disability laws and the Convention.

*Purpose*

Bearing in mind that United States domestic civil rights laws and
international human rights laws operate from distinct, although not
necessarily mutually exclusive perspectives, this paper provides an
initial comparison of the articles comprising the United Nations
Convention on the Rights of Persons with Disabilities (CRPD), adopted by
the General Assembly on December 13, 2006, and opened for signature on
March 30, 2007, with relevant United States federal laws relating to
persons with disabilities.

Current U.S. disability laws run the gamut. The Americans with
Disabilities Act, the Individuals with Disabilities Education Act, § 504
of the Rehabilitation Act, and the Fair Housing Act are the most well
known. But disability laws can be found sprinkled throughout other
statutes as well, such as the Voting Rights Act and Vocational
Rehabilitation Act. These laws collectively aim to protect Americans
with disabilities from discrimination.

This paper is geared toward understanding the degree to which U.S. law
(in form, spirit, and practice) is consistent with the CRPD. Because any
comparison is of necessity at times between "apples and oranges," this
paper endeavors to analyze the issue in the way a treaty monitoring body
would - to see if any area within federal law contravenes the Convention
and/or whether there are gaps where legislation or practice might be
introduced or reformed to ensure compliance. At this juncture, the CRPD
has not been subjected to the scrutiny and interpretation of an
international monitoring body. The CRPD creates a Committee tasked with
reviewing regular reports of States Parties. It will ultimately be up to
that Committee to fill in the gaps and choose between competing
interpretations. Having said that, it is possible to set forth a
plausible estimate of the CRPD's reach against which to analyze U.S.
law.

*Synopsis of Analysis*

This paper identifies areas in which U.S. law is harmonious to that of
the CRPD's requirements, as well as existing gaps in U.S. law when
compared to each Article in the CRPD. It also highlights potential areas
within the body of U.S. disability laws that would require examination
if the U.S. either signed and ratified the CRPD, or desired to have its
domestic disability laws and policies be of a level with the
Convention's coverage.

This comparative analysis is an extremely important tool if our nation
is to consider joining the global community as part of this historic
Convention, or simply to reevaluate domestic laws and policies in a
manner that would respond to current shortcomings and thereby maintain
America's precedence in the field. This paper can therefore serve as
background for an informed decision on the issue of signing and
ratifying the CRPD, as well as an introspection of currently prevailing
laws, policies, and practices more generally. Although the current U.S.
administration does not lean towards signing or ratifying the
Convention, this may be influenced by a lack of crucial information
towards making that decision. Alternatively, future administrations may
take a different approach to international treaties generally, and the
CRPD specifically.

Several points bear mentioning. The U.S. legal system is a federalist
one, meaning that both state and federal constitutions, statutes, and
common law impact the rights of persons with disabilities. This paper
focuses nearly exclusively on federal law, and specifically on the
primary statutes. It is not intended, nor can it be within its mandate,
absolutely comprehensive in scope. Thus, while constitutional law and
federal statutes rest at the top of the federal disability policy
pyramid, there are multiple and various programs within the Executive
branch that impact the lives of people with disabilities, although they
will vary greatly in terms of longevity, sustainability, and actual
impact. The paper discusses these programs to the extent that they have
generally been noted by experts in the field to have been sustained and
effective.

*Explanation of Key Findings*

As a general matter, the aims of the CRPD are consistent with U.S.
disability law, in respect of which significant segments of the CRPD
drew inspiration. For the majority of articles, U.S. law can be viewed
as either being of a level with the mandates of the Convention or
capable of reaching those levels either through more rigorous
implementation and/or additional actions by Congress. In addition to
highlighting areas of harmonious thresholds of legal protection, this
paper also identifies several CRPD Articles that illustrate gaps between
United States disability laws and the Convention. The Articles
identified as currently having the most significant gaps between U.S.
law and policy and the CRPD are as follows:

Article 5 - Equality and Non-Discrimination. Current U.S. law and policy
lacks equality measures such as vocational training, affirmative action,
quotas, and job set-asides.

Article 6 - Women with Disabilities. Current U.S. law and policy lacks
positive measures sufficient to ensure the full and equal enjoyment of
all human rights.

Article 7 - Children with Disabilities. In the main, State rather than
U.S. law, governs the rights of children.

Article 8 - Awareness raising. Current U.S. law and policy has no
affirmative mandate to alter social stereotypes.

Article 9 -- Accessibility. Current under-enforcement of federal laws
create a gap between legal requirements and reality.

Article 11 - Situations of risk and humanitarian emergencies. Current
U.S. laws and policies prohibiting discrimination in the provision of
services relating to emergency services have not been implemented.

Article 12 - Equal recognition before the law. Legal capacity is
governed primarily by State-level law.

Article 13 - Access to Justice. U.S. courts have interpreted physical
access to court services to be limited by a fundamental alteration
defense, and have not sufficiently ensured other access to justice.

Article 16 - Freedom from Exploitation, Violence, and Abuse. Current
U.S. law and policy does not provide for proactive education and
training to prevent exploitation, violence, and abuse.

Article 18 - Liberty of movement and nationality. Current U.S.
immigration policy restricts potential residents and certain visitors
with disabilities.

Article 19 - Living independently and being included in the community.
Current U.S. law and policy limits the right to live in the community to
services that do not cause fundamental alterations.

Article 20 - Personal mobility. Current U.S. law and policy does not
recognize a right to the provision of medical and assistive devices in
the manner required by the CRPD.

Article 23 - Respect for Home and the Family. State, rather than U.S.
law, mainly governs these rights.

Article 24 -- Education. Current U.S. law does not seek to develop
children's full potential but instead requires an adequate education.

Article 25 - Health. State, rather than U.S. law, mainly governs this
right.

Article 27- Work and Employment. Current U.S. law and policy does not
provide equality measures, such as vocational training, affirmative
action, or job set-asides.

Article 28 - Adequate standard of living and social protection. Current
U.S. law does not recognize economic or social protections as rights.

Article 29 - Participation in Political and Public Life. Current U.S.
law explicitly protects most of what the CRPD envisions, yet has been
laxly implemented in the field of voting rights.

Article 30 - Participation in Cultural Life, Recreation, Leisure, and
Sport. Current U.S. law does not recognize cultural, recreational,
leisure or sport participation as an affirmative right.

Article 32 - International cooperation. Current U.S. law does not
mandate inclusive-development practices abroad.

It is important to emphasize, however, that these gaps are capable of
being narrowed or eradicated through either more rigorous implementation
of existing U.S. laws and policies, and/or through Congressional action.

*Conclusion and Recommendations*

The ultimate conclusion of this paper is that there is no legal
impediment to U.S. signature and ratification on the basis that, in
large measure, the legal standards articulated in the CRPD align with
U.S. disability law.

The U.S. disability rights agenda, premised on a social model of
disability, has exerted a powerful international influence in revising
legal regimes affecting disabled persons. But the U.S. scheme, which is
primarily an antidiscrimination one, has limits that are reflected in
the gaps discussed above. Specifically, it has proven difficult to
transform society's institutional structures and attitudes towards
marginalized individuals. Further complicating the U.S. disability
antidiscrimination project have been cramped judicial interpretations on
threshold definition of disability issues,[^1] as well as uneven
implementation of existing federal law.[^2]

An example of all of these factors involves employment levels for people
with disabilities. Observers have alternatively blamed restrictive
Supreme Court decisions and noted the abysmal success rates of ADA Title
I plaintiffs. Just as importantly, however, are the missing pieces in
the U.S. disability policy scheme, including health insurance gaps and
lack of training and rehabilitation services, which can actually create
disincentives and barriers to work. The overall U.S. disability
employment policy has been criticized as non-integrated and lacking in
extra-statutory support.[^3]

These gaps are capable of being narrowed or eradicated through either
more rigorous implementation of existing U.S. laws and policies, and/or
through Congressional action. To the extent that this paper identifies
gaps or potential inconsistencies between U.S. disability law and the
CRPD, the tools of law reform and ratification processes could serve to
address and facilitate ratification by the United States.

Signature by the United States of the CRPD would be a realistic aim,
insofar as signature implies taking no steps that would undermine the
principles of the treaty in question but does not render the treaty
legally binding on the United States unless and until ratification is
undertaken. Any subsequent ratification process would, as with any human
rights convention ratification, entail a careful review of existing law
and could be coupled with law reform in targeted areas where
appropriate, as well as the use of other tools of ratification,
including the attachment of reservations, declarations and
understandings that have facilitated U.S. accession to human rights
conventions.[^4] To provide one illustration, when the U.S. ratified the
Convention on the Elimination of All Forms of Racial Discrimination, it
attached a reservation in respect of provisions that could have the
effect of restricting American constitutional and federal laws according
extensive protections on individual freedom of speech. This reservation
served to facilitate U.S. ratification of that Convention, and the
mechanism of reservations, declarations and understandings would be a
tool available to the United States in the case of CRPD
ratification.[^5]

**Introduction**

The body of this Paper offers an analysis, by article, of the
relationship between the CRPD and relevant sources of United States law.
Although these analyses will generally proceed individually by CRPD
article and in chronological order, at two points it deviates from this
structure. First, the Preamble, Article 1 (Purpose), Article 3 (General
Purpose), and Article 4 (General Obligations) are grouped together and
compared with the legal framework in the United States affecting person
with disabilities. Secondly, this paper groups Articles 33-40, which
address monitoring and implementation, together in one discussion.

This Paper also contains a detailed appendix which includes the text of
each article of the CRPD followed by a description of corresponding
sources of central United States law. This appendix provides additional
context to the discussion of the individual articles contained in the
main body of the Paper.

*Preamble, Articles 1 (Purpose), 3 (General Principles), & 4 (General
Obligations)*

The United States legal framework is directed toward civil and political
(or negative) rights protection, and leaves economic, social, and
cultural (or positive) rights, when these are provided, to Congress.
Thus, concepts from the CRPD (as well as the other human rights treaties
referenced and incorporated in the Preamble) such as non-discrimination
can be seen as falling readily within the gambit of civil rights
protection. By contrast, CRPD notions such as respect, dignity, equal
worth, the full enjoyment of all rights, equality of opportunity,
mandated legislation and governmental activities, the use of special
measures as well as other economic and social rights, and duties
relating to proactive alteration of the social understanding of
disability, lie beyond the currently conceived parameters of United
States law. This basic premise will be developed throughout this paper
in the specific context covered by each individual article of the CRPD.

*Article 2 - Definitions*

United States law is on level with the CRPD in requiring the provision
of reasonable accommodations, in limiting that provision at a level when
the accommodation imposes an undue hardship upon the provider, and in
defining as discriminatory the non-provision of a reasonable
accommodation.

United States law differs from the CRPD in that the latter does not
directly define the term "disability."[^6] However, the CRPD
acknowledges the social construction of disability in two separate
places.[^7] Depending upon the ultimate interpretation by the monitoring
committee,[^8] this definition may ultimately be harmonious with the
definition set forth in the ADA and the Rehabilitation Act.

*Article 5 -- Equality and Non-Discrimination*

Current United States law is quite consistent with Article 5 to the
extent that it prohibits discrimination and seeks equality through the
provision of reasonable accommodations. The U.S. experience with
reasonable accommodation was referenced in the UN negotiations on the
CRPD. Nevertheless, it should be noted that the reasonable accommodation
provision of U.S. disability statutes has not been uncontroversial.
There is a documented view amongst some sectors of the public that
people with disabilities are getting special treatment or perks.[^9]

At the same time, U.S. laws fall short of the CRPD in the extent to
which they "take all appropriate steps to ensure that reasonable
accommodation is provided" or provide "\[s\]pecific measures" that
"accelerate or achieve de facto equality of persons with disabilities."
Thus, programs that are contemplated by the Convention, such as
affirmative action, quota regimes, government procurement contracts, or
set aside disability-specific professions, are beyond the concept of
equality as currently understood in U.S. law and politics. These types
of schemes, however, are within Congress's spending power to authorize
if it so chooses.

*Article 6 -- Women with Disabilities*

Commentators have noted the problems of intersectionalities of
discrimination on the basis of race and sex.[^10] Currently, however,
federal disability law does not acknowledge this particularly vulnerable
population. Any claims for discrimination on the basis of sex and
disability must proceed under different statutory theories. Moreover, to
the extent that measures as contemplated by the CRPD exceed U.S.
concepts of civil rights equality, they are not currently protected or
provided for, although with legislative will they could.

*Article 7 -- Children with Disabilities*

Like most areas touching on family law, the status and rights of
children are more a province of the states than the federal government.
So while there are laws protecting people with disabilities generally,
and children with disabilities in the school setting, there are no
specific antidiscrimination laws aiming at the protection of children
with disabilities more globally. This circumstance is perhaps
highlighted by the United States being one of only two countries not to
have ratified the Convention on the Rights of the Child.[^11]

*Article 8 -- Awareness Raising***\
**

Since deregulation of the broadcasting industry in the 1980s, the
federal government no longer requires media providers to act in a
socially responsible manner as a condition of licensing. Thus,
regulatory mechanisms do not mandate that media outlets broadcast
positive imagery of people with disabilities, or to foster attitudinal
changes. Moreover, regulation of public service announcements (public
awareness raising advertisements produced by a variety of sources,
including federal government agencies) which could fulfill some of the
mandates set forth in the CRPD, is left to the Advertising (Ad) Council,
a non-profit entity that distributes the majority of produced public
service announcements. Thus, United States law does not affirmatively
require the breakdown of stereotypes through media outlets. Furthermore,
one could argue that First Amendment rights relating to freedom of
expression protect media outlets from being forced to broadcast
particular content.

The Individuals with Disabilities in Education Act (IDEA) requires
public schools to make available to all eligible children with
disabilities a free appropriate public education in the least
restrictive environment appropriate to their individual needs, however
it does not affirmatively mandate the breakdown of social stigma
relating to children with disabilities.

NCD has evaluated IDEA enforcement over the years and judged it to be a
chronic problem area.

Congress, however, could utilize its spending powers to encourage larger
social attitudinal changes by providing subsidies or tax incentives to
media outlets, or grants to educational facilities, that worked towards
breaking down historical stereotypes relating to disability.

*Article 9 - Accessibility*

United States law covers many of the issues addressed in Article 9, but
there are some gaps. The laws discussed below prohibit certain actions
and even require some affirmative steps, such as barrier removal. But
these laws do not generally force private or public actors to
disseminate information or to provide training.

Although Internet websites operated by local, state, or federal
governments are required to be accessible under Title II of the ADA and
the Rehabilitation Act, the case law has been uneven in applying Title
III of the ADA to privately owned and operated websites. In no case has
Title III of the ADA been held to extend to stand-alone private
websites.

While the laws discussed above have relatively broad coverage and there
has been promulgation of standards (e.g., the ADAAG Guidelines for
physical places and Access Board for methods of electronic information),
there are few current monitoring sources to assess how much progress has
been made. Title III of the ADA, in particular, has been criticized for
being chronically underenforced.[^12] Moreover, both Title II and Title
III obligations are subject to a "fundamental alterations" or "undue
burden" defense. Accordingly, although current U.S. law may fall short
of that which is envisioned by the CRPD, a more forceful implementation
of existing law and/or measures by Congress could readily bring U.S. law
on a level with the CRPD.

*Article 10 -- Right to Life*

United States law is harmonious with the CPRD in so far as it prevents
the State from interfering with its attainment.

*Article 11 -- Situations of Risk and Humanitarian Emergencies*

Hurricanes Katrina and Rita poignantly demonstrated the inadequacy of
United States disaster preparedness for meeting the needs of persons
with disabilities.[^13] Notably, persons with disabilities and their
needs were glaringly absent from the National Response Plan issued by
the Department of Homeland Security the previous year.[^14] Moreover,
federal and state agencies failed to incorporate the requirements set
forth in an Executive Order[^15] and later, recommendations contained in
an interagency report[^16] before the disasters struck.[^17] Bills that
would have remedied some of the defects in federal coverage by requiring
more effective implementation of disability disaster preparedness
policies failed in both the House and Senate.[^18] The National Council
on Disability has been tasked with evaluating and making recommendations
regarding persons with disabilities relative to Homeland Security
issues, and so continues to hold public forums on this topic.[^19]
Hence, both legal protection and actual practice in the United States
currently lags behind the mandates contained in the CRPD, although a
more forceful implementation of existing law and/or measures by Congress
could readily bring U.S. law closer to the CRPD.

*Article 12 -- Equal Recognition before the law***\
**

Because individual state laws governing the legal capacity of persons
with disabilities are assessed on the basis of being rationally related
to forwarding a legitimate state purpose, historically Americans with
disabilities have been subjected to varying levels of stigma and
subordination.[^20] Indeed, an extensive catalogue of just such
state-sponsored enactments which violated the rights of persons with
disabilities was appended to Justice Breyer's dissent in *Univ. of Ala.
v. Garrett*.[^21] An extreme, but classic and not yet explicitly
overruled instance of upholding a state's legitimate interest as against
the autonomy and well-being of persons with disabilities is *Buck v
Bell*.[^22] In *Buck*, the Supreme Court upheld the right of a state to
sterilize "feeble minded" individuals on the ground that it was in the
best interest of both the Commonwealth of Virginia and the sterilized
individuals "in order to prevent our being swamped with
incompetence."[^23] Thus, there is reason to be concerned that persons
with disabilities in the United States are still not accorded their full
rights of legal capacity, although the ADA and Rehabilitation Acts have
had the beneficial effect of extending disability antidiscrimination
principles to these issues. However, more rigorous enforcement by the
federal government, and/or additional programs, could better ensure the
implementation of these fundamental rights.

*Article 13 -- Access to Justice*

The combination of the ADA, Rehabilitation Act, and Architectural
Barriers Act provide extensive protections in the justice system for
people with disabilities. These statutes, however, do not require
appropriate training, as does Article 13, although no doubt some covered
entities have trained their personnel to create compliance with federal
law.[^24] It should be noted, however, that access to justice,
specifically courthouse accessibility, has often been offered as an
example of an area where there is a substantial disconnect between what
the law requires and what actually happens.[^25] At this point, it is
unclear how far *Tennessee v. Lane*, which holds that individuals can
sue for damages under Title II of the ADA for inaccessibility in state
courts, actually extends. In *Goodman v. Georgia*,[^26] the Court
declined to address whether *Lane* applied to other types of violations
of the criminal justice system. Despite the ADA\'s prohibition against
disabled persons being \"excluded from participation in or be\[ing\]
denied the benefits of the services, programs, or activities of a public
entity,\" the Court in *Lane* confined its holding to one individual\'s
right to physical access to courts. In so doing, it left open the
question of whether people with disabilities can gain relief when denied
access to other state facilities, programs, and services, even those
involving the court system; including, for example, the rights of
witnesses, jurors, or other participants in the justice system.
Moreover, although the reasonable modification requirement of Title II
does not include an undue hardship defense or fundamental alterations
defense, courts have read them into the statute.[^27] Thus, courts
determining whether a modification will constitute a fundamental
alteration consider whether the change will cause an undue financial or
administrative burden on the entity. Therefore, despite broad protective
mandates, there are reasons to be concerned about the extent to which
individuals with disabilities receive full and meaningful access to
justice in practice. Current restrictive interpretations are not
inevitable, however, and with more vigorous enforcement and different
interpretations of existing law, U.S. law should not necessarily fall
short of that which is envisioned by the CRPD.

*Article 14 -- Liberty and security of the person*

On its face, United States law seems harmonious with that of the CRPD,
although both sets of legal directives face challenges in their
respective effective implementation.

One element that creates a possibility for a gap in U.S. legal
protection is that the provision of services to persons with
disabilities under United States law could be circumscribed if it causes
a fundamental alteration to a given state's program. By contrast, the
CRPD mandates that the "existence of a disability shall in no case
justify a deprivation of liberty."

Moreover, as discussed in Article 12, because state laws directly
control issues relating to capacity, courts assess whether a statute or
practice that disadvantages persons with disabilities is "rationally
related" to a legitimate state purpose. In consequence, Americans with
disabilities have historically been subjected to varying levels of
stigma and subordination. Thus, the protection of liberty and security
of persons with disabilities may be vulnerable to judicial perspective.
Therefore, while as currently interpreted and enforced, there appears to
be a gap between U.S. law and the CRPD, there is no reason why with more
vigorous interpretation and/or action by Congress, the two could not be
on an equal level.

*Article 15 -- Freedom from Torture or Cruel, Inhuman, or Degrading
Treatment or Punishment*

In *Buck v. Bell*,[^28] the Supreme Court upheld a Virginia statute
requiring compulsory sterilization of people with mental retardation at
the age of 18. Although never explicitly overruled, this case should no
longer be considered good law. Starting in the 1980's, there was a line
of deinstitutionalization cases that culminated in the landmark Supreme
Court case of *Youngberg v. Romeo*,[^29] which affirmed the Fourteenth
Amendment Due Process clause rights of individuals with intellectual
disabilities to reasonably safe conditions of confinement, freedom from
unreasonable bodily restraints, and such minimally adequate habilitation
training as reasonably might be required by those interests.[^30] The
Civil Rights of Institutionalized Persons Act[^31] also empowers the
Attorney General of the United States to investigate confinement
conditions at state run institutions, including prisons, nursing homes,
and institutions for people with psychiatric or developmental
disabilities. In the event the Attorney General believes those
conditions are "egregious or flagrant," subject individuals to "grievous
harm," and are part of a "pattern or practice" of undermining
individuals' full enjoyment of their rights, the Attorney General may
initiate a civil law suit.[^32]

United States law seems therefore to be harmonious with the prohibitions
set forth in the CRPD. Ultimately, however, the efficacy of these
protections depends upon rigorous implementation.

*Article 16 -- Freedom for Exploitation, Violence, and Abuse*

The primary U.S. response to the problem of exploitation, violence, and
abuse against people with disabilities is antidiscrimination law. Its
success at doing so, at least in a targeted sense, is certainly an open
question. People with disabilities continue to be the targets of
harassment on the basis of disability, particularly in their workplaces
and schools, in a way that antidiscrimination law has not been
interpreted to fully prevent.[^33] At the heart of this shortcoming is
reliance on negative rights and private enforcement mechanisms. This
dynamic, and the consequential result, is at odds with the human rights
approach contained in the CRPD. However, proactive measures are within
the power of Congress to provide, if it so chooses.

*Article 17 -- Protecting the Integrity of the Person*

Current United States law, both statutory and constitutional, formally
prevents forced medical treatment or restraint against a patient's will,
except in limited circumstances. At the same time, protection of these
rights heavily depends upon their enforcement, including the perceptions
of judges and other adjudicators regarding the equality of person with
disabilities. With proper enforcement, U.S. law should be on the level
with what the CRPD envisions.

*Article 18 -- Liberty of movement and nationality*

On its face, United States law seems generally harmonious with that of
the CRPD. And both sets of legal directives face challenges in their
respective effective implementation.

One area that seemingly divides the CRPD from U.S. legal protections is
that the treaty prohibits denials of nationality and of citizenship on
the basis of disability, whereas American immigration policy restricts
certain visitors and future residents with disabilities. For example,
immigrants with HIV status have been precluded from entering the United
States since 1987,[^34] and since 1990 Congressional exclusion of
immigrants from receiving public benefits, including health care
coverage, have acted as a disincentive to immigrate.[^35] Thus, while
United States law currently falls short of the rights enumerated in the
CRPD, it could be readily amended to reach the CRPD threshold.

*Article 19 -- Living Independently and being included in the community*

It must be underscored that the right to live independently and to be
included in the community is viewed by many disability rights advocates
as central to their lives, and the logical outcome of the protections
contained in other CRPD articles; specifically, independent living is
often contrasted by those advocates with the type of
institutionalization prohibited by Articles 14-17. [^36]

Unlike the CRPD mandate that states "take effective and appropriate
measures" to ensure that persons with disabilities live independently
and in the community, the right as enunciated in *Olmstead* is not as
strong.[^37] When determining whether conditions, pursuant to the ADA's
limitations cause a fundamental alteration in the provided services,
U.S. courts may take into account the economic impact on a state of
moving individuals to community-based homes.[^38] Specifically, although
the reasonable modification requirement of Title II does not include an
undue hardship defense, courts have generally read undue hardship into
the fundamental alteration defense. Thus, courts determining whether a
modification will constitute a fundamental alteration consider whether
the change will cause an undue financial or administrative burden on the
entity. For example, states can consider whether deploying the resources
necessary for community-based living for some individuals with cognitive
disabilities will deprive other individuals with cognitive disabilities
from adequate institutional-based care.[^39] This is a lower threshold
than that required by the CRPD.[^40]

As discussed *supra* in the context of accessibility, and *infra* in the
contexts of personal mobility, health, adequate standard of living and
social protection, and participation in cultural life, recreation,
leisure and sport, the threshold required to ensure that persons with
disabilities are not discriminated against in the provision of state
provided services (below a fundamental alteration), is likely inferior
to that mandated by the CRPD. This, however, does not rest on an
inevitable or necessarily uniform interpretation of United States law.

*Article 20 -- Personal Mobility*

Although the United States provides medical benefits to certain persons
with disabilities through Medicaid and/or Medicare, these programs are
governed through Congressional appropriations. As such, they as not
guaranteed as "rights." Further, the extent of the provision of any
existing services to persons with disabilities is limited to those which
do not cause a fundamental alteration to the individual state programs
providing those services. Thus, the extent of how effective measures
are, whether assistive devices and services are affordable, the amount
(if any) of training, and the autonomous choices left to individuals
with disabilities, are all subject to more tightly governed restrictions
than are those under the CRPD. Last, positive rights aspects of the CRPD
relating to "encouraging" service providers to account for the needs of
persons with disabilities lies beyond the purview of rights as currently
conceived in United States law. It is within Congress's power, however,
to amend United States law to bring it commensurate with the CRPD.

*Article 21 -- Freedom of Expression and Opinion, and Access to
Information*

U.S. law is consistent with Article 21. Government at all levels --
federal, state, and local -- are under an obligation to provide
effective communication to people with disabilities, which includes
providing information in accessible formats. The federal government has
also passed statutes requiring privately owned places of public
accommodation to provide accessible forms of communication. Again, it
must be noted that this is subject to the fundamental alteration and
undue burden defenses, and enforcement of these rights is generally left
to individual complainants. There is no reason why, with adequate
enforcement, U.S. law could not be on the level with the CRPD.

*Article 22 -- Respect for Privacy*

As discussed above, current United States law does not include
disability as a specific "hate crime." Legislation is currently under
consideration that would expand the existing hate crimes statute to
include crimes motivated by a person's disability, amongst other
categories. The ADA protection on confidentiality of medical records is
one of the few *per se* violations of the Act. Generally speaking, the
applicable United States laws on these issues appear to be administered
evenhandedly, although not with any particular protections for
disability. Thus, there is no reason why U.S. law can and should not be
interpreted to be consistent with the CRPD.

*Article 23 -- Respect for Home and the Family*

In practice, States and State courts often appear to rely on stereotypes
in determining custody disputes involving parents with mental or
physical disabilities, even in cases citing the "best interest of the
child" standard.[^41] This is an area where although federal law
formally requires one thing, the actual practice in state proceedings
may not always comply. Moreover, many states do not consider parental
termination proceedings to be "programs, services, or activities" for
purposes of Title II of the ADA, thereby removing these proceedings from
ADA protection and opening the door for disability discrimination based
on stereotypes.[^42] Therefore, while at present U.S. law may fall short
in practice from that envisioned by the CRPD, properly enforced U.S. law
could be at the level envisioned by the Convention.

*Article 24 - Education*

United States law has evolved significantly from a time when children
with disabilities were generally educated, if at all, in separate
specialized institutions.[^43] Nevertheless, there are some gaps with
what Article 24 sets forth. Current federal law has no definitive
provisions facilitating the learning of Braille, facilitating the
learning of sign language and the promotion of the linguistic identity
of the deaf community, or provisions to employ teachers with
disabilities. To the extent that such activities occur, they fall within
the province of what states or Congress (through its spending clause
powers) may or may not do.

Moreover, in terms of the Article's recognition of the need of the
development by persons with disabilities of their talents to their
fullest potential, there is a much criticized Supreme Court decision
which actually cuts the opposite way. In *Board of Education v.
Rowley*,[^44] the Supreme Court considered the contours of the
requirement of free appropriate public education. The Court held that
the IDEA requires educational programming that calculated to provide
*some* educational benefit to the child, as opposed to educational
services designed to maximize the child's educational potential.

Ultimately, while prevailing, the *Rowley* interpretation is not
inevitable. The IDEA is passed pursuant to Congress's spending clause
powers, and within these limits Congress has adequate power to
appropriate resources to create more robust opportunities for children
with disabilities to the level of the CRPD.

*Article 25 - Health*

The United States relies primarily on private life and health insurance
and medical services, buttressed by the Medicaid and Medicare systems.
Although these programs do provide certain services and coverage for
some people with disabilities, the main apparatus constraining their
application to people with disabilities is antidiscrimination law, such
as the ADA or Rehabilitation Act. As discussed above, in some cases this
has been successful; in others, not as much.

The existing mosaic of healthcare related disability law has been much
criticized for not well serving people with disabilities.[^45] The
backdrop to this criticism is that "many of the services people with
disabilities need for independence and labor force participation --
personal assistance and assistive technology being the most obvious --
are typically regarded as 'medical' services for which the health
insurance system is responsible.[^46] The problem is that private
insurance often places severe limitations on coverage for disabling
conditions.[^47] Private insurance policies can exclude coverage for
certain named conditions,[^48] or impose annual or lifetime caps on
permitted reimbursement for specific conditions (even if these caps are
way below what is actually required).[^49] Moreover, private insurance
policies may be particularly inappropriate and ineffective regarding
people with disabilities because they trend toward acute, as opposed to
chronic care, and typical requirement that covered treatments be
"medically necessary," which usually excludes durable medical equipment
and assistive technologies.[^50] Public insurance, in the form of
Medicaid or Medicare, incorporate restrictions that create disincentives
for people with disabilities to work. The ability to receive Medicare is
contingent on a showing that an individual is unable to do "any
substantial gainful work which exists in the national economy."[^51] And
although Ticket to Work and Work Incentives Improvement Act
(TWWIIA),[^52] makes it possible for people to work and retain Medicare
eligibility for eight years, benefits recipients who reach the end of
that period abruptly lose their Medicare eligibility. Although Medicaid
varies from state to state, it generally contains similar disincentive
rules.[^53]

Finally, despite an Executive Order reinforcing the *Olmstead*
decision[^54] and the Centers for Medicare and Medicaid Services
distribution over \$120 million in grants in 2001 and 2002 to help
states increase community based integration for people with
disabilities, states are facing a lack of coordinated community-based
services and a shortfall of funds in carrying out the integration
mandate. The *Olmstead* mandate is also not unlimited; it considers
whether changes will cause an undue financial or administrative burden
on the entity.[^55]

Although currently U.S. law, as implemented, falls short of what is
envisioned by the CRPD, the direction of U.S. law and policy is trending
toward the threshold put forth by the CRPD, and that standard could be
achieved with proper implementation and/or action by Congress.

*Article 27 -- Work and Employment*

Gerard Quinn has stated that "the mischief that Article 27 is directed
towards is the long shadow cast of chronic underemployment of persons
with disabilities."[^56] The United States approach -- which, as it
relates to employment, is an antidiscrimination approach -- has had
mixed success.

Commentators often blame the narrow reading the Supreme Court has given
to the ADA, particularly to its definition of disability. In *Sutton v.
United Airlines, Inc.*,[^57] the Court held that in considering whether
an impairment "substantially limits" a major life activity, courts
should consider the individual\'s mitigating measures.[^58] In *Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams*,[^59] the Court held
that major life activities are "activities that are of central
importance to most people\'s daily life." The Court has also sanctioned
a narrow reading of the "regarded as" prong of the definition of
disability,[^60] which many had presumed was intended to be a catch-all
provision.[^61]

Commentators have also noted that the current disability legal and
policy scheme, particularly regarding insurance, creates disincentives
for people to work, and therefore may be actually working against Title
I's goals.[^62]

One finding that has been well documented is that most Title I ADA
plaintiffs lose. Ruth Colker, for example, has shown that contrary to
media perceptions, plaintiffs usually lose Title I cases. Her research
shows that defendants prevail in 94% of ADA Title I cases at the trial
level and in 87.5% of cases at the courts of appeals.[^63] These
conclusions are supported by other researchers like the American Bar
Association ("ABA"), which compiles ADA Title I results for each year.
For 2003, like previous years, the ABA found that plaintiffs lost Title
I cases a vast majority of the time.[^64] Similarly, Lou Rulli, focusing
on Title I cases filed in the Eastern District of Pennsylvania, has
found that the success rate is so low that the private bar is hesitant
to take these cases.[^65]

The biggest gap in coverage between the U.S. disability scheme -- which
again, from an antidiscrimination perspective is quite strong- and the
CRPD involves job training and rehabilitation. Title I was intended as
the most expedient method of bringing about social and economic equality
for people with disabilities, but additional policy measures supporting
Title I have been gradual and uneven.[^66] It took nearly a decade, for
example, to pass initiatives that allowed disabled persons receiving
public assistance to maintain their health care coverage while
transitioning to employment.[^67]

Consequently, while the ADA forbids employment discrimination the means
by which disabled Americans can obtain and keep gainful employment have
not been provided. This is evidenced empirically by the fact that
post-ADA disabled Americans continue to experience disproportionately
high rates of unemployment.[^68] The problem is heightened in the most
socially marginalized among people with disabilities \-- those facing
double discrimination (e.g., women and ethnic minorities with
disabilities), and the intellectually and psychosocially disabled. Thus,
employment-related antidiscrimination prohibitions are only effective
when linked with equality measures that alter workplace hierarchies and
cultures. These latter type programs are typical of international
approaches to disability law and policy, especially within the CRPD, but
excluded by the U.S. perspective of civil rights. Therefore, although
the current U.S. disability law and policy scheme has fallen short of
what is envisioned by the CRPD, there is no reason that a combination of
aggressive implementation of existing law, as well as additional steps
by Congress, could not approximate the CRPD's more comprehensive scheme.

*Article 28 -- Adequate standard of living and social protection*

Although the United States provides an economic safety net to persons
with disabilities living in impoverished circumstances, these social
benefits are governed through Congressional appropriations. As such,
they as not guaranteed as "rights." Further, the extent of the provision
of any existing services to persons with disabilities is limited to
those which do not cause a fundamental alteration to state programs
providing those services. Last, positive rights aspects of the CRPD
relating to an "adequate standard of living" including food, clothing,
housing, social protection, poverty alleviation, and family training and
support, go beyond what rights are explicitly protected under United
States law. While U.S. legal protections therefore fall short of those
contained in the CRPD, Congress could affect such outcomes by utilizing
its spending power.

*Article 29 -- Participation in Political and Public Life*

With the passage of HAVA, United States law now expressly provides that
people with disabilities have the right to vote secretly and
independently. Unlike Titles II and III of the ADA, HAVA provides no
fundamental alteration or undue burden defense. For some time, United
States law has allowed people with disabilities the right to vote with
assistance, should they choose. So at least on paper, United States law
is quite strong in protecting the voting rights of people with
disabilities. It must be noted, however, that this is one area where
many policy bodies and commentators have noted the disconnect between
law and reality, and so at present the actual voting rights protection
in the United States may lag behind that which is envisioned in the
CRPD. In the 2000 presidential election (which was pre-HAVA), the
Government Accountability Office conducted a survey of accessibility of
polling places.[^69] This study found that 84% of polling places had one
or more features that could present challenges to physical access for
voters with disabilities. Impediments included high door thresholds,
ramps with steep slopes, and lack of accessible parking, among others.
Over a quarter of the counties choosing polling places did not use
accessibility as a criterion in making their selection. Social science
research demonstrates that the cumulative effect of these problems is
decreased voting levels for people with disabilities. The 2000 National
Organization on Disability/Harris Survey found that voter registration
is lower for people with disabilities than for people without
disabilities (62% versus 78%, respectively).[^70] United States law does
not provide for set-asides or quotas in elected offices for people with
disabilities.

*Article 30 - Participation in Cultural Life, Recreation, Leisure, and
Sport*

The United States' approach to participation in cultural life,
recreation, leisure, and sport is based almost entirely on an
antidiscrimination model. This means that to the extent that such
opportunities exist for the general population, the federal government
provides a legal right to people with disabilities to participate in
such activities without discrimination. In terms of enforcement, the
Department of Justice has made accessibility of cultural and recreation
facilities a priority.[^71] But the larger project envisioned by Article
30, including enabling persons with disabilities to develop and utilize
creative and artistic potential, establishing support and recognition of
specific cultural and linguistic identities, and encouraging
mainstreaming of sporting opportunities, is largely left to private
actors and advocacy organizations.[^72] Accordingly, a gap exists
between U.S. law and CRPD protection, albeit one that could be filled
with aggressive implementation and/or additional Congressional action.

*Article 31 -- Statistics and Data Collection**\
***

On its face, United States law seems harmonious with that of the CRPD.

Both sets of legal directives, however, face challenges in their
respective effective implementation.

*Article 32 -- International Cooperation*

As made abundantly clear in a September 2003 report by the National
Council on Disability, the United States has been remiss both in
providing technical assistance and disability-inclusive development
aid.[^73] The extent of State Department technical assistance is itself
unclear, as is the accuracy of the disability-related content in the
annual human rights reports. More trenchantly, USAID funded development
practices cannot be assured of being in sync with the clear mandate for
disability-inclusive development practices contained in the CRPD,
although efforts have been undertaken. In addition, USAID's policy
recommends that foreign USAID missions engage with disability
representative organizations in their host countries without providing a
framework for those consultations. Finally, the policy does not require
USAID foreign missions to consult with disability organizations in order
to develop and implement programs.[^74]

Given the progressive experience of the United States in developing
disability law and policy, it has an opportunity to provide global
leadership and guidance (and also cultivate goodwill) by providing
greater technical assistance, making development aid
disability-inclusive, and mainstreaming disability policies through its
own federal agencies, including the Department of State and USAID.

*Articles 33-40 (Implementation and Monitoring*)

At least in academic quarters, the various enforcement apparatus of the
federal statutes discussed above has been criticized as insufficient.
The private enforcement provisions of the ADA have been undermined by
the Supreme Court's holding in *Buckhannon Board & Care Home, Inc. v.
West Virginia Department of Health and Human Resources*,[^75] a case
that dramatically changed the ways that plaintiffs could recover
attorneys' fees in civil rights cases. Rather than qualifying as
"prevailing parties" by showing that their lawsuit was a catalyst for
voluntary change by the Defendant (the previously accepted "catalyst
theory"), the Court held that plaintiffs must achieve a "material
alteration of the legal relationship of the parties," such as a
favorable judgment on the merits or consent decree.[^76]

The public enforcement response has also been criticized as
insufficiently responding to statutory violations and creating
deterrence.[^77] In particular, there has been an underutilization of
the class action device and a lack of aggressive use of disparate impact
doctrine, particularly in Title I cases.[^78] This is despite the fact
that public enforcement authorities, including the DOJ and EEOC, have
brought such cases in other civil rights contexts. For example, the EEOC
moved aggressively -- and successfully -- after the initial passage of
Title VII to eliminate racial discrimination amongst private
employers.[^79] The EEOC also initially concentrated their efforts on
establishing that Title VII prohibited not only purposeful
discrimination but also practices with a discriminatory impact.[^80] In
contrast, despite the fact that the Equal Employment Opportunity
Commission promulgated regulations explicitly stating that disparate
impact is covered under Title I of the ADA, neither the EEOC nor the DOJ
have taken steps to develop the case law in this area.

These criticisms have also been applied to other disability rights laws.
Under the Help America Vote Act, despite the fact that the sole
enforcement power is with the Department of Justice, they have only
brought two cases relating to the disability provisions of HAVA,[^81]
despite evidence of noncompliance.[^82] Similarly, the enforcement of
the Fair Housing Act's disability provisions has been criticized.[^83]

As set forth throughout this paper, enforcement of existing laws is a
key part of implementation. Through improving its enforcement, the U.S.
disability legal and policy scheme, while setting forth sweeping
antidiscrimination mandates coupled with reasonable accommodation
obligations, can come closer to the broad protection envisioned by the
CRPD. It is also important to note that if the U.S. was among the first
twenty States Parties to ratify the CRPD, it could exert influence on
the appointment of experts during the Conference of States Parties. As
the analysis below will demonstrate, there are a variety of sources of
expertise the U.S. could tap into for this purpose.

The implementation scheme set forth in Articles 33-40 envisions that
State Parties shall designate one or more focal points within government
for matters relating to the implementation of the Convention (Article
33), as well as submit reports on treaty compliance (Article 35). These
precise bodies do not currently exist within the United States
government, but it is worthwhile to evaluate which agencies within the
current structure have disability-related responsibilities, including an
implementation and enforcement role.

The following agencies have a role in implementing and enforcing
disability law and policy:

Within the Department of Justice's Civil Rights Division, there is a
Disability Rights Section. This is where the bulk of the enforcement
power and expertise in non-employment matters resides. The Section's
responsibilities under the ADA include litigation under Titles II and
III; litigation against public employers under Title I; certification of
state and local building codes for equivalency with the requirements of
the ADA Standards for Accessible Design; provision of information on ADA
rights and responsibilities to businesses and governments covered by the
ADA, persons with disabilities, and the general public; and coordination
of public outreach activities with other federal agencies with
enforcement responsibilities under the ADA; investigation of complaints
within certain subject matter areas under Title II including, for
example, law enforcement, public safety, courts, and correctional
institutions; coordination of the administrative enforcement of Title II
by the Department of Justice and seven other designated agencies; and
issuance of regulations necessary to implement Title II and Title III of
the ADA, including the ADA Standards for Accessible Design. The Section
also has responsibility for enforcing the Help America Vote Act's
disability-related provisions. The Section also coordinates and ensures
consistent and effective enforcement of Section 504 of the
Rehabilitation Act of 1973, which prohibits discrimination on the basis
of disability in federally assisted and federally conducted programs and
activities.

The Housing and Civil Enforcement Section, also within the Civil Rights
Division of the Department of Justice, oversees enforcement of the Fair
Housing Amendments Act.

The Equal Employment Opportunity Commission is responsible for
promulgating regulations to implement Title I of the ADA, and they are
also responsible for enforcing the ADA's employment provisions.

Within the Department of Labor, the Office of Disability Employment
Policy (ODEP) was authorized by Congress in the Department of Labor\'s
FY 2001 appropriation. ODEP is a sub-cabinet level policy agency in the
Department of Labor. The stated mission of the ODEP is to provide
"national leadership on disability employment policy by developing and
influencing the use of evidence-based disability employment policies and
practices, building collaborative partnerships, and delivering
authoritative and credible data on employment of people with
disabilities."

The Department of Labor is also obligated to help implement ADA Title II
and Section 504 of the Rehabilitation Act (including fielding
complaints) in areas relating to labor and the work force.

The Department of Transportation is responsible for promulgating
regulations pursuant to the transportation provisions of ADA Title II
and III.[^84] The DOT is also required also obligated to help implement
ADA Title II and Section 504 of the Rehabilitation Act (including
fielding complaints) in areas relating to transportation, including
highways, public transportation, traffic management (non-law
enforcement), automobile licensing and inspection, and driver
licensing.[^85]

The United States Access Board is a federal agency devoted to accessible
design. The Board develops and maintains design criteria for the built
environment, transit vehicles, telecommunications equipment, and for
electronic and information technology. It also provides technical
assistance and training on these requirements and on accessible design
and continues to enforce accessibility standards that cover federally
funded facilities. The Access Board is tasked with developing standards
for electronic accessibility under Section 508 and physical
accessibility under ADA Title III (the ADAAG guidelines), amongst
others.

The Department of Education is responsible for promulgating regulations
and enforcing parts of Section 504 of the Rehabilitation Act.[^86] It is
also obligated to help implement ADA Title II (including fielding
complaints) in areas relating to the operation of elementary and
secondary education systems and institutions, institutions of higher
education and vocational education (other than schools of medicine,
dentistry, nursing, and other health-related schools), and
libraries.[^87]

The Department of Agriculture is required to help implement ADA Title II
and Section 504 of the Rehabilitation Act (including fielding
complaints) in areas relating to farming and the raising of livestock,
including extension services.[^88]

The Department of Health and Human Services is required to help
implement ADA Title II and Section 504 of the Rehabilitation Act
(including fielding complaints) in areas relating to the provision of
health care and social services, including schools of medicine,
dentistry, nursing, and other health-related schools, the operation of
health care and social service providers and institutions, including
\"grass-roots\" and community services organizations and programs, and
preschool and daycare programs.[^89]

The Department of Housing and Urban Development's responsibilities
include implementing and enforcing the Fair Housing Act, Section 504 of
the Rehabilitation Act of 1973, and the Architectural Barriers Act of
1968. HUD is also required to help implement ADA Title II (including
fielding complaints) in areas relating to state and local public
housing, and housing assistance and referral.[^90]

The Department of the Interior is required to help implement ADA Title
II and Section 504 of the Rehabilitation Act (including fielding
complaints) in areas relating to lands and natural resources, including
parks and recreation, water and waste management, environmental
protection, energy, historic and cultural preservation, and
museums.[^91]

Finally, although the monitoring and implementation provisions of the
CRPD and its Optional Protocol are the product of a different legal
regime, it bears noting that several provisions go beyond what is
usually conceived in U.S. disability law. The CRPD monitoring body may,
for example, elicit the expertise and input of NGOs[^92] and UN
specialized agencies and organs,[^93] conduct proactive inquiries,[^94]
and conduct Conferences of States Parties to discuss broader
implementation strategies.[^95] The National Council on Disability
currently engages in several of these activities, although not in an
adjudicatory capacity.

**Conclusion**

Overall, U.S. disability law and policy can be viewed as harmonious with
the CRPD. This is not coincidental, as significant parts of the CRPD
drew inspiration from the ADA and other U.S. disability statutes. But
gaps exist within both specific legal areas and in their implementation.
This is not surprising because, as set forth herein, the CRPD takes a
more holistic approach to the inclusion of people with disabilities.
Like other human rights treaties, the CRPD sets forth a full spectrum of
social, cultural, and economic measures.[^96] In this way, the CRPD
provides a useful metric for self-examination, and can spur discussions
of more effective ways to use existing legal and policy strategies as
well as how to formulate new ones.

Although a discussion of the benefits of signing and ratifying the CRPD
lies outside the scope of this paper, it bears noting that disability
rights advocates assert that formal assumption of the obligations
contained in the Convention would establish a clearer mandate for
increasing the legal and social protection of people with disabilities,
and also ensure more effective monitoring of these mandates. Moreover,
if the U.S. was among the first twenty States Parties to ratify, it
could exert influence on the appointment of experts during the initial
Conference of States Parties.

The gaps between United States law and the CRPD are not insurmountable,
and should not stand as an obstacle to U.S. consideration of signing and
ratifying this historic Convention. Most gaps can be closed through more
aggressive implementation and enforcement of existing laws, combined, in
some areas, with additional funding and/or legislative action by
Congress. Additional federal measures supporting actions already in
place by some states would also move the overall U.S. federal system
closer to that envisioned by the CRPD.

**Appendix**

This Appendix provides the text of each article (or set of articles) in
the CRPD followed by a discussion of the relevant United States law(s)
on the topic.

**Preamble, Articles 1, 3, & 4 of CRPD and Description of Corresponding
United States Law**

*Preamble*

> *The States Parties to the present Convention*,
>
> \(a\) *Recalling* the principles proclaimed in the Charter of the
> United Nations which recognize the inherent dignity and worth and the
> equal and inalienable rights of all members of the human family as the
> foundation of freedom, justice and peace in the world,
>
> \(b\) *Recognizing* that the United Nations, in the Universal
> Declaration of Human Rights and in the International Covenants on
> Human Rights, has proclaimed and agreed that everyone is entitled to
> all the rights and freedoms set forth therein, without distinction of
> any kind,
>
> \(c\) *Reaffirming* the universality, indivisibility, interdependence
> and interrelatedness of all human rights and fundamental freedoms and
> the need for persons with disabilities to be guaranteed their full
> enjoyment without discrimination,
>
> \(d\) *Recalling* the International Covenant on Economic, Social and
> Cultural Rights, the International Covenant on Civil and Political
> Rights, the International Convention on the Elimination of All Forms
> of Racial Discrimination, the Convention on the Elimination of All
> Forms of Discrimination against Women, the Convention against Torture
> and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
> Convention on the Rights of the Child, and the International
> Convention on the Protection of the Rights of All Migrant Workers and
> Members of Their Families,
>
> \(e\) *Recognizing* that disability is an evolving concept and that
> disability results from the interaction between persons with
> impairments and attitudinal and environmental barriers that hinders
> their full and effective participation in society on an equal basis
> with others,
>
> \(f\) *Recognizing* the importance of the principles and policy
> guidelines contained in the World Programme of Action concerning
> Disabled Persons and in the Standard Rules on the Equalization of
> Opportunities for Persons with Disabilities in influencing the
> promotion, formulation and evaluation of the policies, plans,
> programmes and actions at the national, regional and international
> levels to further equalize opportunities for persons with
> disabilities,
>
> \(g\) *Emphasizing* the importance of mainstreaming disability issues
> as an integral part of relevant strategies of sustainable development,
>
> \(h\) *Recognizing also* that discrimination against any person on the
> basis of disability is a violation of the inherent dignity and worth
> of the human person,
>
> \(i\) *Recognizing further* the diversity of persons with
> disabilities,
>
> \(j\) *Recognizing* the need to promote and protect the human rights
> of all persons with disabilities, including those who require more
> intensive support,
>
> \(k\) *Concerned* that, despite these various instruments and
> undertakings, persons with disabilities continue to face barriers in
> their participation as equal members of society and violations of
> their human rights in all parts of the world,
>
> \(l\) *Recognizing* the importance of international cooperation for
> improving the living conditions of persons with disabilities in every
> country, particularly in developing countries,
>
> \(m\) *Recognizing* the valued existing and potential contributions
> made by persons with disabilities to the overall well-being and
> diversity of their communities, and that the promotion of the full
> enjoyment by persons with disabilities of their human rights and
> fundamental freedoms and of full participation by persons with
> disabilities will result in their enhanced sense of belonging and in
> significant advances in the human, social and economic development of
> society and the eradication of poverty,
>
> \(n\) *Recognizing* the importance for persons with disabilities of
> their individual autonomy and independence, including the freedom to
> make their own choices,
>
> \(o\) *Considering* that persons with disabilities should have the
> opportunity to be actively involved in decision-making processes about
> policies and programmes, including those directly concerning them,
>
> \(p\) *Concerned* about the difficult conditions faced by persons with
> disabilities who are subject to multiple or aggravated forms of
> discrimination on the basis of race, colour, sex, language, religion,
> political or other opinion, national, ethnic, indigenous or social
> origin, property, birth, age or other status,
>
> \(q\) *Recognizing* that women and girls with disabilities are often
> at greater risk, both within and outside the home of violence, injury
> or abuse, neglect or negligent treatment, maltreatment or
> exploitation,
>
> \(r\) *Recognizing* that children with disabilities should have full
> enjoyment of all human rights and fundamental freedoms on an equal
> basis with other children, and recalling obligations to that end
> undertaken by States Parties to the Convention on the Rights of the
> Child,
>
> \(s\) *Emphasizing* the need to incorporate a gender perspective in
> all efforts to promote the full enjoyment of human rights and
> fundamental freedoms by persons with disabilities,
>
> \(t\) *Highlighting* the fact that the majority of persons with
> disabilities live in conditions of poverty, and in this regard
> recognizing the critical need to address the negative impact of
> poverty on persons with disabilities,
>
> \(u\) *Bearing in mind* that conditions of peace and security based on
> full respect for the purposes and principles contained in the Charter
> of the United Nations and observance of applicable human rights
> instruments are indispensable for the full protection of persons with
> disabilities, in particular during armed conflicts and foreign
> occupation,
>
> \(v\) *Recognizing* the importance of accessibility to the physical,
> social, economic and cultural environment, to health and education and
> to information and communication, in enabling persons with
> disabilities to fully enjoy all human rights and fundamental freedoms,
>
> \(w\) *Realizing* that the individual, having duties to other
> individuals and to the community to which he or she belongs, is under
> a responsibility to strive for the promotion and observance of the
> rights recognized in the International Bill of Human Rights,
>
> \(x\) *Convinced* that the family is the natural and fundamental group
> unit of society and is entitled to protection by society and the
> State, and that persons with disabilities and their family members
> should receive the necessary protection and assistance to enable
> families to contribute towards the full and equal enjoyment of the
> rights of persons with disabilities,
>
> \(y\) *Convinced* that a comprehensive and integral international
> convention to promote and protect the rights and dignity of persons
> with disabilities will make a significant contribution to redressing
> the profound social disadvantage of persons with disabilities and
> promote their participation in the civil, political, economic, social
> and cultural spheres with equal opportunities, in both developing and
> developed countries,
>
> Have agreed as follows:

*Article 1\-- Purpose*

> The purpose of the present Convention is to promote, protect and
> ensure the full and equal enjoyment of all human rights and
> fundamental freedoms by all persons with disabilities, and to promote
> respect for their inherent dignity.
>
> Persons with disabilities include those who have long-term physical,
> mental, intellectual or sensory impairments which in interaction with
> various barriers may hinder their full and effective participation in
> society on an equal basis with others.

*Article 3 -- General principles*

> The principles of the present Convention shall be:
>
> \(a\) Respect for inherent dignity, individual autonomy including the
> freedom to make one's own choices, and independence of persons;
>
> \(b\) Non-discrimination;
>
> \(c\) Full and effective participation and inclusion in society;
>
> \(d\) Respect for difference and acceptance of persons with
> disabilities as part of human diversity and humanity;
>
> \(e\) Equality of opportunity;
>
> \(f\) Accessibility;
>
> \(g\) Equality between men and women;
>
> \(h\) Respect for the evolving capacities of children with
> disabilities and respect for the right of children with disabilities
> to preserve their identities.

*Article 4 -- General obligations*

> 1\. States Parties undertake to ensure and promote the full
> realization of all human rights and fundamental freedoms for all
> persons with disabilities without discrimination of any kind on the
> basis of disability. To this end, States Parties undertake:
>
> \(a\) To adopt all appropriate legislative, administrative and other
> measures for the implementation of the rights recognized in the
> present Convention;
>
> \(b\) To take all appropriate measures, including legislation, to
> modify or abolish existing laws, regulations, customs and practices
> that constitute discrimination against persons with disabilities;
>
> \(c\) To take into account the protection and promotion of the human
> rights of persons with disabilities in all policies and programmes;
>
> \(d\) To refrain from engaging in any act or practice that is
> inconsistent with the present Convention and to ensure that public
> authorities and institutions act in conformity with the present
> Convention;
>
> \(e\) To take all appropriate measures to eliminate discrimination on
> the basis of disability by any person, organization or private
> enterprise;
>
> \(f\) To undertake or promote research and development of universally
> designed goods, services, equipment and facilities, as defined in
> article 2 of the present Convention, which should require the minimum
> possible adaptation and the least cost to meet the specific needs of a
> person with disabilities, to promote their availability and use, and
> to promote universal design in the development of standards and
> guidelines;
>
> \(g\) To undertake or promote research and development of, and to
> promote the availability and use of new technologies, including
> information and communications technologies, mobility aids, devices
> and assistive technologies, suitable for persons with disabilities,
> giving priority to technologies at an affordable cost;
>
> \(h\) To provide accessible information to persons with disabilities
> about mobility aids, devices and assistive technologies, including new
> technologies, as well as other forms of assistance, support services
> and facilities;
>
> \(i\) To promote the training of professionals and staff working with
> persons with disabilities in the rights recognized in this Convention
> so as to better provide the assistance and services guaranteed by
> those rights.
>
> 2\. With regard to economic, social and cultural rights, each State
> Party undertakes to take measures to the maximum of its available
> resources and, where needed, within the framework of international
> cooperation, with a view to achieving progressively the full
> realization of these rights, without prejudice to those obligations
> contained in the present Convention that are immediately applicable
> according to international law.
>
> 3\. In the development and implementation of legislation and policies
> to implement the present Convention, and in other decision-making
> processes concerning issues relating to persons with disabilities,
> States Parties shall closely consult with and actively involve persons
> with disabilities, including children with disabilities, through their
> representative organizations.
>
> 4\. Nothing in the present Convention shall affect any provisions
> which are more conducive to the realization of the rights of persons
> with disabilities and which may be contained in the law of a State
> Party or international law in force for that State. There shall be no
> restriction upon or derogation from any of the human rights and
> fundamental freedoms recognized or existing in any State Party to the
> present Convention pursuant to law, conventions, regulation or custom
> on the pretext that the present Convention does not recognize such
> rights or freedoms or that it recognizes them to a lesser extent.
>
> 5\. The provisions of the present Convention shall extend to all parts
> of federal states without any limitations or exceptions.

**Coverage of United States Law**

The Preamble and Articles 1, 3, and 4 set forth the major reasons for
the CRPD's adoption, as well as its goals. Below, we set forth the major
sources of U.S. disability law, describing both their primary purpose
and obligations that they impose. Both these laws and other sources of
law (including constitutional and common law) that have some bearing on
disability policy will be addressed more thoroughly *infra* in the
specific Article sections where they are relevant.

[Architectural Barriers Act of 1968]{.underline}

The Architectural Barriers Act,[^97] passed in 1968, requires that new
facilities built with federal funds be accessible to people with
disabilities.

[Rehabilitation Act of 1973]{.underline}

The stated purpose of the Rehabilitation Act of 1973,[^98] was to
"provide a statutory basis for the Rehabilitation Services
Administration," an agency charged with carrying out the provisions of
the Act, and to authorize various rehabilitation programs. The original
primary focus was vocational training and rehabilitation. Currently, the
Rehabilitation prohibits discrimination on the basis of disability in
programs conducted by Federal agencies, in programs receiving Federal
financial assistance, in Federal employment, and in the employment
practices of Federal contractors.

[Individuals with Disabilities Education Act]{.underline}

The IDEA,[^99] (formerly known as the Educational for All Handicapped
Children Act of 1975), deals with the educational rights of individuals
with disabilities. Specifically, Congress found that "there are more
than eight million handicapped children in the United States today," the
educational needs of which were not being met. The Act's purpose was to
assure that children with disabilities have available to them a "free
appropriate" public education which emphasizes special education and
related services devoted to meet their unique needs.

[Voting Statutes]{.underline}

The Voting Rights Act of 1965 (as amended in 1982)[^100] provides that
any voter who requires assistance to vote by reason of blindness or
other disability may be given assistance by a person of the voter\'s
choice, other than the voter\'s employer or agent of that employer or
officer or agent of the voter\'s union. In 1984, Congress passed the
Voting Accessibility for the Elderly and Handicapped Act.[^101] With
this Act, Congress sought to "promote the fundamental right to vote by
improving access for handicapped and elderly individuals to registration
facilities and polling places for Federal elections." The Voting
Accessibility Act provided that the political subdivisions of the state
that are responsible for conducting elections must ensure that polling
places for federal elections are accessible to voters with disabilities.
In October of 2002, the Help America Vote Act,[^102] was passed into law
with the stated purpose of reforming the United States' voting system.
Among other things, this Act provides for accessible voting machines and
a secret and independent ballot for voters with disabilities.

[Air Carrier Access Act of 1986]{.underline}

The Air Carrier Access Act[^103] prohibits discrimination by airline
carriers against individuals with disabilities.

[Fair Housing Amendments Act of 1988]{.underline}

In 1988, Congress introduced a series of amendments to the Civil Rights
Act of 1968, including a prohibition on housing discrimination against
people with disabilities. These amendments are known as the Fair Housing
Amendments Act of 1988.[^104] The stated purpose was to recognize and
eliminate housing discrimination against people with disabilities. The
Fair Housing Amendments Act makes it unlawful to discriminate in the
sale or rental of housing, and the terms and conditions of such a sale
or rental, on the basis of disability.

[Americans with Disabilities Act]{.underline}

The ADA[^105] is the most comprehensive U.S. legal and policy statement
on the rights of persons with disabilities. The ADA is divided into
three main parts, commonly referred to as "Titles." Title I prohibits
discrimination on the basis of disability in employment, Title II
prohibits discrimination in the programs, services, and activities of
public entities, and Title III prohibits discrimination in privately
owned places of public accommodation.

In passing the ADA, Congress explicitly recognized that people with
disabilities were a stigmatized and marginalized population that had a
history of being discriminated against. More so than in other disability
statutes, Congress was explicit as to what it was doing and why it was
doing it. Congress found that:

> \(1\) some 43,000,000 Americans have one or more physical or mental
> disabilities, and this number is increasing as the population as a
> whole is growing older;
>
> \(2\) historically, society has tended to isolate and segregate
> individuals with disabilities, and, despite some improvements, such
> forms of discrimination against individuals with disabilities continue
> to be a serious and pervasive social problem;
>
> \(3\) discrimination against individuals with disabilities persists in
> such critical areas as employment, housing, public accommodations,
> education, transportation, communication, recreation,
> institutionalization, health services, voting, and access to public
> services;
>
> \(4\) unlike individuals who have experienced discrimination on the
> basis of race, color, sex, national origin, religion, or age,
> individuals who have experienced discrimination on the basis of
> disability have often had no legal recourse to redress such
> discrimination;
>
> \(5\) individuals with disabilities continually encounter various
> forms of discrimination, including outright intentional exclusion, the
> discriminatory effects of architectural, transportation, and
> communication barriers, overprotective rules and policies, failure to
> make modifications to existing facilities and practices, exclusionary
> qualification standards and criteria, segregation, and relegation to
> lesser services, programs, activities, benefits, jobs, or other
> opportunities;
>
> \(6\) census data, national polls, and other studies have documented
> that people with disabilities, as a group, occupy an inferior status
> in our society, and are severely disadvantaged socially, vocationally,
> economically, and educationally;
>
> \(7\) individuals with disabilities are a discrete and insular
> minority who have been faced with restrictions and limitations,
> subjected to a history of purposeful unequal treatment, and relegated
> to a position of political powerlessness in our society, based on
> characteristics that are beyond the control of such individuals and
> resulting from stereotypic assumptions not truly indicative of the
> individual ability of such individuals to participate in, and
> contribute to, society;
>
> \(8\) the Nation\'s proper goals regarding individuals with
> disabilities are to assure equality of opportunity, full
> participation, independent living, and economic self-sufficiency for
> such individuals; and
>
> \(9\) the continuing existence of unfair and unnecessary
> discrimination and prejudice denies people with disabilities the
> opportunity to compete on an equal basis and to pursue those
> opportunities for which our free society is justifiably famous, and
> costs the United States billions of dollars in unnecessary expenses
> resulting from dependency and nonproductivity.[^106]

Congress stated its purpose as:

> \(1\) to provide a clear and comprehensive national mandate for the
> elimination of discrimination against individuals with disabilities;
>
> \(2\) to provide clear, strong, consistent, enforceable standards
> addressing discrimination against individuals with disabilities;
>
> \(3\) to ensure that the Federal Government plays a central role in
> enforcing the standards established in this chapter on behalf of
> individuals with disabilities; and
>
> \(4\) to invoke the sweep of congressional authority, including the
> power to enforce the fourteenth amendment and to regulate commerce, in
> order to address the major areas of discrimination faced day-to-day by
> people with disabilities.[^107]

**Article 2 of CRPD and Description of Corresponding United States Law**

*Article 2 -- Definitions*

> For the purposes of the present Convention:
>
> "Communication" includes languages, display of text, Braille, tactile
> communication, large print, accessible multimedia as well as written,
> audio, plain-language, human-reader and augmentative and alternative
> modes, means and formats of communication, including accessible
> information and communication technology;
>
> "Language" includes spoken and signed languages and other forms of non
> spoken languages;
>
> "Discrimination on the basis of disability" means any distinction,
> exclusion or restriction on the basis of disability which has the
> purpose or effect of impairing or nullifying the recognition,
> enjoyment or exercise, on an equal basis with others, of all human
> rights and fundamental freedoms in the political, economic, social,
> cultural, civil or any other field. It includes all forms of
> discrimination, including denial of reasonable accommodation;
>
> "Reasonable accommodation" means necessary and appropriate
> modification and adjustments not imposing a disproportionate or undue
> burden, where needed in a particular case, to ensure to persons with
> disabilities the enjoyment or exercise on an equal basis with others
> of all human rights and fundamental freedoms;
>
> "Universal design" means the design of products, environments,
> programmes and services to be usable by all people, to the greatest
> extent possible, without the need for adaptation or specialized
> design. "Universal design" shall not exclude assistive devices for
> particular groups of persons with disabilities where this is needed.

**Coverage of United States Law**

Most of the key statutory definitional concepts in U.S. disability law
are spelled out in the ADA.

Although both Title II and Title III of the ADA contain guarantees of
effective communication, the term is not defined. The ADA defines
auxiliary aides and services as including "(A) qualified interpreters or
other effective methods of making aurally delivered materials available
to individuals with hearing impairments; (B) qualified readers, taped
texts, or other effective methods of making visually delivered materials
available to individuals with visual impairments; (C) acquisition or
modification of equipment or devices; and (D) other similar services and
actions."[^108] The regulations provide additional detail.[^109]

The term "language" is not defined in the ADA.

Each title of the ADA prohibits discrimination on the basis of
disability, although they each do so differently. Title I generally
provides that "no covered entity shall discriminate against a
*qualified* individual with a disability because of the disability of
such individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges and
employment."[^110] A qualified individual with a disability is defined
to mean "an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires. For the purposes of this
subchapter, consideration shall be given to the employer\'s judgment as
to what functions of a job are essential, and if an employer has
prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered evidence of
the essential functions of the job."[^111] Title II's basic prohibition
is that "no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity."[^112] Although the statute does not define "qualified
individual with a disability," this has been interpreted to mean
substantially the same as in the Title I context; i.e., an individual
with a disability who can meet the essential eligibility requirements
with or without reasonable accommodation. Title III's basic prohibition
on discrimination is that "\[n\]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public
accommodation."[^113]

"Reasonable accommodation" is defined for purposes of Title I of the ADA
as including "making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and job
restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities."[^114] Although reasonable accommodation is not defined in
Title II, the concept of reasonable modifications for Title II purposes
has its roots in the Rehabilitation Act. In *School Board of Nassau
County v. Arline*,[^115] the Supreme Court stated an "accommodation is
not reasonable if it either imposes 'undue financial and administrative
burdens' on a grantee, or requires 'a fundamental alteration in the
nature of \[the\] program.'"[^116] The Title II regulations offer
extensive guidance on the reasonable modification requirement.
Consistent with *Southeastern Community College v. Davis*,[^117] and
other Rehabilitation Act precedent, the regulations provide that
reasonable modifications must be made unless the public entity can
demonstrate that making the modifications would fundamentally alter the
nature of the program, service, or activity.[^118] For purposes of Title
III, an entity is required to make reasonable modifications in policies,
practices, or procedures, when such modifications are necessary to
afford such goods, services, facilities, privileges advantages, or
accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.[^119]

"Universal design" is not defined in the ADA.

The one definitional issue that United States law contains but Article 2
does not involves the definition of disability. For purposes of the ADA,
the term disability means, with respect to an individual, "(A) a
physical or mental impairment that substantially limits one or more of
the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment."[^120]
The Supreme Court has interpreted this definition narrowly.[^121]

**Article 5 of CRPD and Description of Corresponding United States Law**

*Article 5 -- Equality and Non-Discrimination*

> 1\. States Parties recognize that all persons are equal before and
> under the law and are entitled without any discrimination to the equal
> protection and equal benefit of the law.
>
> 2\. States Parties shall prohibit all discrimination on the basis of
> disability and guarantee to persons with disabilities equal and
> effective legal protection against discrimination on all grounds.
>
> 3\. In order to promote equality and eliminate discrimination States
> Parties shall take all appropriate steps to ensure that reasonable
> accommodation is provided.
>
> 4\. Specific measures which are necessary to accelerate or achieve de
> facto equality of persons with disabilities shall not be considered
> discrimination under the terms of the present Convention.

**Coverage of United States Law**

The bedrock equality principle in United States law is in the Equal
Protection Clause of the U.S. Constitution, which provides "no state
shall . . . deny to any person within its jurisdiction the equal
protection of the laws."[^122]

Under the Equal Protection Clause a government's drawing lines on the
basis of disability is constitutional unless the challenging individual
can prove that the disability classification is not rationally related
to a legitimate government interest.[^123] The Equal Protection Clause
only prohibits actions by state actors.

Stronger statements of equality and nondiscrimination can be found in
the various federal statutes relating to disability. Title I of the ADA
prohibits disability discrimination on the basis of disability in
employment; Title II prohibits disability discrimination in programs,
services, and activities run by state and local governments (i.e.,
healthcare, prisons, voting, etc.); and Title III prohibits disability
discrimination and in privately owned places of public accommodations
(i.e., restaurants, movie theatres, sporting venues, etc). In addition
to taking a non-discrimination approach, all titles include reasonable
accommodation provisions. The Fair Housing Amendments Act, generally
makes it unlawful to discriminate in the sale or rental of housing on
the basis of disability. This includes a duty to *allow* reasonable
modifications to premises and to *make* reasonable accommodations to
rules, policies, practices, or services. The Help America Vote Act
requires each polling place to have one voting machine that enables
people with disabilities to vote secretly and independently. Section 504
of the Rehabilitation Act prohibits organizations that receive federal
funds from discriminating on the basis of disability, and has been
interpreted to include a reasonable accommodations provision.

By specifically allowing for and requiring reasonable accommodation,
federal statutory law expressly envisions a scheme where affirmative
steps by public and private actors to assist individuals with disability
are acceptable.[^124] Perhaps for this reason, there has been no
development of reverse discrimination cases involving claims against
people with disabilities (as there has been in the race context).

**Article 6 of CRPD and Description of Corresponding United States Law**

*Article 6 -- Women with Disabilities*

> 1\. States Parties recognize that women and girls with disabilities
> are subject to multiple discrimination, and in this regard shall take
> measures to ensure the full and equal enjoyment by them of all their
> human rights and fundamental freedoms.
>
> 2\. States Parties shall take all appropriate measures to ensure the
> full development, advancement and empowerment of women, for the
> purpose of guaranteeing them the exercise and enjoyment of the human
> rights and fundamental freedoms set out in the present Convention.

**Coverage of United States Law**

There are both constitutional and statutory protections for women in
United States law. The Equal Protection Clause of the U.S. Constitution
provides that "no state shall . . . deny to any person within its
jurisdiction the equal protection of the laws."[^125] In the gender
context, courts have interpreted this provision to mean that when the
government draws lines on the basis of gender, the classification will
only be allowed if the government can show that it is substantially
related to an important government purpose. This is called intermediate
scrutiny.

There are several statutory provisions protecting women from
discrimination. Title VII of the Civil Rights Act of 1964 prohibits
discrimination in employment on the basis of sex (amongst other
things).[^126] Sex discrimination that is a bona fide occupational
qualification is permissible,[^127] whereas there is no similar
provision for race. Under this statute, sexual harassment is actionable
if the unwelcome sexual advance was "sufficiently severe or pervasive to
alter the conditions of the \[victim's\] employment."[^128] Title IX of
the Civil Rights Act of 1972 [^129] provides that no person shall, on
the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education
program or activity receiving federal financial assistance.

There are no federal statutes that specifically address simultaneous
discrimination against women with disabilities.

**Article 7 of CRPD and Description of Corresponding United States Law**

*Article 7 -- Children with Disabilities*

> 1\. States Parties shall take all necessary measures to ensure the
> full enjoyment by children with disabilities of all human rights and
> fundamental freedoms on an equal basis with other children.
>
> 2\. In all actions concerning children with disabilities the best
> interest of the child shall be a primary consideration.
>
> 3\. States Parties shall ensure that children with disabilities have
> the right to express their views freely on all matters affecting them,
> their views being given due weight in accordance with their age and
> maturity, on an equal basis with other children, and to be provided
> with disability and age-appropriate assistance to realize that right.

**Coverage of United States Law**

The regulation of children is largely an issue that is left to the
states under the guise of family law. So although not technically a
federal matter, a recent Supreme Court opinion noted that "a search of
current state custody and visitation laws reveals fully 698 separate
references to the 'best interest of the child' standard."[^130]

Children with disabilities are protected from discrimination on the
basis of disability in the provision of programs, services, and
activities provided by public entities; and in the enjoyment of
privately owned places of public accommodation, under Titles II and III
of the ADA, respectively.[^131] Similarly, the IDEA provides that
children with certain enumerated disabilities must receive a free
appropriate legal education, although the Court has held that this does
not necessarily mean that they are entitled to achieve their maximum
educational potential.[^132]

**Article 8 of CRPD and Description of Corresponding United States Law**

*Article 8 - Awareness-raising*

1\. States Parties undertake to adopt immediate, effective and
appropriate measures:

> \(a\) To raise awareness throughout society, including at the family
> level, regarding persons with disabilities, and to foster respect for
> the rights and dignity of persons with disabilities;
>
> \(b\) To combat stereotypes, prejudices and harmful practices relating
> to persons with disabilities, including those based on sex and age, in
> all areas of life;
>
> \(c\) To promote awareness of the capabilities and contributions of
> persons with disabilities.

2\. Measures to this end include:

> \(a\) Initiating and maintaining effective public awareness campaigns
> designed:
>
> \(i\) To nurture receptiveness to the rights of persons with
> disabilities;
>
> \(ii\) To promote positive perceptions and greater social awareness
> towards persons with disabilities;
>
> \(iii\) To promote recognition of the skills, merits and abilities of
> persons with disabilities, and of their contributions to the workplace
> and the labour market;
>
> \(b\) Fostering at all levels of the education system, including in
> all children from an early age, an attitude of respect for the rights
> of persons with disabilities;
>
> \(c\) Encouraging all organs of the media to portray persons with
> disabilities in a manner consistent with the purpose of the present
> Convention;
>
> \(d\) Promoting awareness-training programmes regarding persons with
> disabilities and the rights of persons with disabilities.

**Coverage of United States Law**

United States law does not affirmatively require the promotion of
positive images regarding persons with disabilities, or the active
breakdown of stereotypes.

**Article 9 of CRPD and Description of Corresponding United States Law**

*Article 9 -- Accessibility*

> 1\. To enable persons with disabilities to live independently and
> participate fully in all aspects of life, States Parties shall take
> appropriate measures to ensure to persons with disabilities access, on
> an equal basis with others, to the physical environment, to
> transportation, to information and communications, including
> information and communications technologies and systems, and to other
> facilities and services open or provided to the public, both in urban
> and in rural areas. These measures, which shall include the
> identification and elimination of obstacles and barriers to
> accessibility, shall apply to, inter alia:
>
> \(a\) Buildings, roads, transportation and other indoor and outdoor
> facilities, including schools, housing, medical facilities and
> workplaces;
>
> \(b\) Information, communications and other services, including
> electronic services and emergency services.
>
> 2\. States Parties shall also take appropriate measures to:
>
> \(a\) Develop, promulgate and monitor the implementation of minimum
> standards and guidelines for the accessibility of facilities and
> services open or provided to the public;
>
> \(b\) Ensure that private entities that offer facilities and services
> which are open or provided to the public take into account all aspects
> of accessibility for persons with disabilities;
>
> \(c\) Provide training for stakeholders on accessibility issues facing
> persons with disabilities;
>
> \(d\) Provide in buildings and other facilities open to the public
> signage in Braille and in easy to read and understand forms;
>
> \(e\) Provide forms of live assistance and intermediaries, including
> guides, readers and professional sign language interpreters, to
> facilitate accessibility to buildings and other facilities open to the
> public;
>
> \(f\) Promote other appropriate forms of assistance and support to
> persons with disabilities to ensure their access to information;
>
> \(g\) Promote access for persons with disabilities to new information
> and communication technologies and systems, including the Internet;
>
> \(h\) Promote the design, development, production and distribution of
> accessible information and communications technologies and systems at
> an early stage, so that these technologies and systems become
> accessible at minimum cost.

**Coverage of United States Law**

**Accessibility in State and Local Government-Run Places and Programs,
Services, and Activities**

Title II of the ADA generally provides that no qualified individual with
a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
such entity. "Public entity" has been interpreted to mean state and
local governments. Many of the areas specifically addressed by this
Article, including access to the physical environment, transportation,
information, buildings, roads, schools, medical facilities, and
workplaces are operated in the United States by state and local
governments, and therefore fall under Title II.[^133] Title II creates
an obligation for public entities to make reasonable modifications to
policies, practices, and procedures; provide people with disabilities
the opportunity o the same benefits of public services; administer
services, programs, or activates in the most integrated setting
appropriate to the needs of qualified individuals with disabilities;
make modifications to facilities; make communications modifications, and
accommodations in transportations.

Regarding creating physical access to buildings and access to
transportation systems -- two areas specifically addressed by Article 9
-- Title II contains some detailed requirements for public buildings and
transportation systems. Physical structures, or "facilities,"[^134] that
pre-dated the ADA must be readily accessible to and useable by
individuals with disabilities, when viewed in their entirety. New
facilities and alterations of existing facilities must be designed and
constructed in such a manner that the facility or part of the facility
(or the alteration) is readily accessible to and usable by individuals
with disabilities.[^135] Public fixed route transportation systems must
purchase buses that are "readily accessible to and usable by individuals
who use wheelchairs,"[^136] and cannot provide disabled individuals with
services that are inferior to those provided to the nondisabled.[^137]
Demand response systems (such as city-operated taxicabs) must buy or
lease only accessible vehicles, and provide a level of service to
individuals with disabilities that is equivalent to people without
disabilities. Intercity rail lines must provide one accessible car per
train, and can only purchase new cars that are accessible.[^138]

Title II also governs public (meaning run by state and local
governments) communications, including Internet websites that are run by
the states.[^139]

**Accessibility in Federal Government Activities and Entities Receiving
Federal Funds**

Section 504 of the Rehabilitation Act of 1973 provides that "no
otherwise qualified individual with a disability in the United States
. . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive
agency . . . ." The Rehabilitation Act, which preceded the ADA, in many
ways overlaps with Title II of the ADA. It prohibits discrimination on
the basis of disability by agencies receiving federal funds, which is a
subset of covered Title II entities. But it also extends
antidiscrimination coverage to the federal government (which the ADA
does not cover). Importantly, Section 508 of the Rehabilitation Act of
1973 requires that federal agencies\' electronic and information
technology be accessible to people with disabilities. The law applies to
all Federal agencies when they develop, procure, maintain, or use
electronic and information technology. Under Section 508, agencies must
give disabled employees and members of the public access to information
that is comparable to the access available to others. The Architectural
and Transportation Barriers Compliance Board ("Access Board") is
responsible for publishing standards for electronic accessibility.

**Accessibility in Privately Owned Places of Public Accommodations**

Title III of the ADA[^140] generally provides that no individual shall
be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases, or operates a place of public
accommodation.

Although places of public accommodation are not expressly defined in the
statute, most physical locations that are open to the public will
qualify. Title III requires the owners and operators of places of public
accommodation to make reasonable modifications to policies are
procedures to allow people with disabilities access, to the extent that
it does not fundamentally alter the nature of the public
accommodation.[^141] Title III has several other textual provisions that
are relevant to Article 9, including prohibitions on denials of
participation, participation in unequal benefit, a requirement to
provide goods and services in the most integrated setting appropriate,
prohibitions on discriminatory eligibility criteria.

Three other noteworthy provisions that overlap with Article 9 involve
communications, architectural, and transportation barriers. Title III
defines discrimination to include "a failure to take such steps as may
be necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services,
unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered or would result in
an undue burden."[^142] Title III's obligations regarding physical
alterations are similar to those in Title II. In facilities existing
before January 26, 1993, Title III requires architectural barriers to be
removed where such removal is readily achievable, i.e., easily
accomplishable and able to be carried out without much difficulty or
expense.[^143] Alterations to existing buildings must be made "in such a
manner that, to the maximum extent feasible, the altered portions of the
facility are readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs."[^144] New
construction must be "readily accessible to and usable by individuals
with disabilities, except where an entity can demonstrate that it is
structurally impracticable. . . ."[^145] The ADA Accessibility
Guidelines (ADAAG) provide general, scoping, and technical standards for
new construction which Title III entities must comply with unless they
can demonstrate alternative means of access that are at least as
accessible as the ADAAG standards.[^146] Finally, Title III contains
provisions prohibiting discrimination in transportation services
operated by private companies.[^147] These requirements track the Title
II requirements discussed above.

Notably, every court to look at the issue has concluded that privately
owned stand-alone Internet websites are not covered by Title III of the
ADA.[^148] However, websites that have a nexus to an actual physical
place of public accommodation may have to be accessible of a program,
service, or activity of the place of public accommodation.[^149]

**Accessibility in Housing**

The Fair Housing Amendments Act generally makes it unlawful to
discriminate in the sale or rental of housing on the basis of
disability. This includes a duty to *allow* reasonable modifications to
premises and to *make* reasonable accommodations to rules, policies,
practices, or services.[^150] FHAA also requires multi-family dwellings
built for first occupancy after March 13, 1991 to be designed and
constructed with certain accessibility features in mind.[^151]

**Article 10 of CRPD and Description of Corresponding United States
Law**

*Article 10 **--** Right to life*

> States Parties reaffirm that every human being has the inherent right
> to life and shall take all necessary measures to ensure its effective
> enjoyment by persons with disabilities on an equal basis with others.

**Coverage of United States Law**

As indicated *infra* in the context of health, the ADA and the
Rehabilitation Act ban discriminatory acts by states in the provision of
life saving or life sustaining medical care, so long as doing so does
not exceed those statutes by causing a fundamental alteration to a state
program. Although rejected administratively by the first Bush
administration rather than being adjudicated in court,[^152] this
requirement was key to negating a proposed Oregon statewide health plan
that rationed medical treatment on the basis of a priority list that
undervalued the treatment of conditions affecting many people with
disabilities relative to those without disabilities.[^153]

To date, courts have determined the decisions of individuals against
state and other private interveners in the context of end-of-life
decisions, to mixed results. [^154] Parents who elect to withhold
life-sustaining treatment from their newborn infants with
disabilities,[^155] have had their decision-making protected from
challenges raised under the Rehabilitation Act.[^156] At the same time,
while upholding absolute bans on "physician assisted suicide" in
Washington and New York,[^157] the Supreme Court has likewise prevented
federal challenges to Oregon's law which permits persons to elect,
within very limited circumstances, to affirmatively end their own
terminally ill and pain-filled lives.[^158] One of the underlying
elements in these decisions, and at the heart of much debate, is whether
or not the end-of-life determinations reflect a divergent societal
valuation of the lives of persons with disabilities.[^159]

**Article 11 of CRPD and Description of Corresponding United States
Law**

*Article 11 -- Situations of risk and humanitarian emergencies*

> States Parties shall take, in accordance with their obligations under
> international law, including international humanitarian law and
> international human rights law, all necessary measures to ensure the
> protection and safety of persons with disabilities in situations of
> risk, including situations of armed conflict, humanitarian emergencies
> and the occurrence of natural disasters.

**Coverage of United States Law**

The ADA, Rehabilitation Act, as well as general Constitutional
principles generally prohibit discrimination against persons with
disabilities in the provision of government services, here humanitarian
relief in the wake of emergencies and natural disasters. The Homeland
Security Appropriations bill, H.R. 5441, signed by President Bush on
October 4, 2006, provides funding for certain procedural safeguards be
in place, for example, the appointment of a Disability
Coordinator.[^160]

**Article 12 of CRPD and Description of Corresponding United States
Law**

*Article 12 -- Equal recognition before the law*

> 1\. States Parties reaffirm that persons with disabilities have the
> right to recognition everywhere as persons before the law.
>
> 2\. States Parties shall recognize that persons with disabilities
> enjoy legal capacity on an equal basis with others in all aspects of
> life.
>
> 3\. States Parties shall take appropriate measures to provide access
> by persons with disabilities to the support they may require in
> exercising their legal capacity.
>
> 4\. States Parties shall ensure that all measures that relate to the
> exercise of legal capacity provide for appropriate and effective
> safeguards to prevent abuse in accordance with international human
> rights law. Such safeguards shall ensure that measures relating to the
> exercise of legal capacity respect the rights, will and preferences of
> the person, are free of conflict of interest and undue influence, are
> proportional and tailored to the person's circumstances, apply for the
> shortest time possible and are subject to regular review by a
> competent, independent and impartial authority or judicial body. The
> safeguards shall be proportional to the degree to which such measures
> affect the person's rights and interests.
>
> 5\. Subject to the provisions of this article, States Parties shall
> take all appropriate and effective measures to ensure the equal right
> of persons with disabilities to own or inherit property, to control
> their own financial affairs and to have equal access to bank loans,
> mortgages and other forms of financial credit, and shall ensure that
> persons with disabilities are not arbitrarily deprived of their
> property.

**Coverage of United States Law**

The ADA, Rehabilitation Act, as well as general Constitutional
principles generally prohibit discrimination against persons with
disabilities in the provision of government services, here legal
capacity. Nevertheless, state laws, which vary by jurisdiction, directly
control issues relating to capacity, including guardianship, property
ownership and control, and the like. If challenged, the validity of
state laws restricting the rights of persons with disabilities can be
examined under the Equal Protection Clause of the Fourteenth Amendment
to the U.S. Constitution, as demonstrated in the Supreme Court case of
*City of Cleburne v. Cleburne Living Center, Inc.*[^161] When so doing,
courts assess whether the statute or practice that disadvantages persons
with disabilities is "rationally related" to a legitimate state
purpose.[^162]

A strong exception, discussed in Article 29, is voting, where the Help
America Vote Act mandates secret and independent voting.

**Article 13 of the CRPD and Description of Corresponding United States
Law**

*Article 13 -- Access to Justice*

> 1\. States Parties shall ensure effective access to justice for
> persons with disabilities on an equal basis with others, including
> through the provision of procedural and age appropriate
> accommodations, in order to facilitate their effective role as direct
> and indirect participants, including as witnesses, in all legal
> proceedings, including at investigative and other preliminary stages.
>
> 2\. In order to help ensure effective access to justice for persons
> with disabilities, States Parties shall promote appropriate training
> for those working in the field of administration of justice, including
> police and prison staff.

**Coverage of United States Law**

There are several sources of U.S. domestic law that address the issues
implicated by Article 13.

**Access to State and Local Justice Systems**

The various apparatus of "justice systems" that are run by state and
local governments -- including state courts, prisons, police officer
behavior, and access to state court systems, whether as a participant or
in other capacities -- are covered by Title II of the ADA.[^163] As
such, these entities cannot exclude a qualified individual with a
disability from participation or deny the benefits of their programs,
services, or activities on the basis of disability. This prevents
blanket exclusions,[^164] as well as an obligation to make reasonable
accommodations and take other affirmative steps to provide access.[^165]
Apart from the ADA, state policies of not providing interpreters to
criminal defendants have been held to violate the U.S.
Constitution.[^166]

**Access to Federal Justice Systems**

The Architectural Barriers Act, requires access to facilities designed,
built, altered, or leased by federal agencies. This includes federal
courthouses. This was the first law passed by Congress to require access
to the built environment by people with disabilities. Section 504 of the
Rehabilitation Act of 1973, also covers access to programs or activities
that receive federal financial assistance, as well as programs or
activities of any Executive Agency. The substantive standards adopted
for ADA Title II are generally the same as those required under Section
504.

**Article 14 of the CRPD and Description of Corresponding United States
Law**

*Article 14 -- Liberty and security of the person*

> 1\. States Parties shall ensure that persons with disabilities, on an
> equal basis with others:
>
> \(a\) Enjoy the right to liberty and security of person;
>
> \(b\) Are not deprived of their liberty unlawfully or arbitrarily, and
> that any deprivation of liberty is in conformity with the law, and
> that the existence of a disability shall in no case justify a
> deprivation of liberty.
>
> 2\. States Parties shall ensure that if persons with disabilities are
> deprived of their liberty through any process, they are, on an equal
> basis with others, entitled to guarantees in accordance with
> international human rights law and shall be treated in compliance with
> the objectives and principles of this Convention, including by
> provision of reasonable accommodation.

**Coverage of United States Law**

The landmark Supreme Court case of *Youngberg v. Romeo*,[^167] affirmed
the Fourteenth Amendment Due Process clause rights of individuals with
intellectual disabilities to reasonably safe conditions of confinement,
freedom from unreasonable bodily restraints, and such minimally adequate
habilitation training as reasonably might be required by those
interests.[^168]

In addition, the Civil Rights of Institutionalized Persons Act[^169]
empowers the Attorney General of the United States to investigate
confinement conditions at state run institutions, including prisons,
nursing homes, and institutions for people with psychiatric or
developmental disabilities. In the event the Attorney General believes
those conditions are "egregious or flagrant," subject individuals to
"grievous harm," and are part of a "pattern or practice" of undermining
individuals' full enjoyment of their rights, the Attorney General may
initiate a civil law suit.[^170]

Both the ADA and the Rehabilitation Act prohibit states from
discriminating against persons with disabilities in the provision of
services, here procedural safeguards that include reasonable
accommodations.

It must also be recalled that, as discussed in Article 12, it is
individual state laws that directly control issues relating to capacity,
and hence individual liberty.

**Article 15 of the CRPD and Description of Corresponding United States
Law**

*Article 15 -- Freedom from Torture or Cruel, Inhuman, or Degrading
Treatment or Punishment*

> 1\. No one shall be subjected to torture or to cruel, inhuman or
> degrading treatment or punishment. In particular, no one shall be
> subjected without his or her free consent to medical or scientific
> experimentation.
>
> 2\. States Parties shall take all effective legislative,
> administrative, judicial or other measures to prevent persons with
> disabilities on an equal basis with others from being subjected to
> torture or cruel, inhuman or degrading treatment or punishment.

**Coverage of United States Law**

The Eighth Amendment of the United States Constitution prohibits cruel
and unusual punishment. Recently, in *United States v. Georgia,*[^171]
the Supreme Court had occasion to consider the case of a prisoner in a
wheelchair who alleged that, amongst other things, that he was confined
for 23-to-24 hours per day in a 12-by-3-foot cell in which he could not
turn his wheelchair around, could not use the toilet and shower
facilities, and had been forced to sit in his own feces and urine while
prison officials refused to assist him in cleaning up the waste. The
Court assumed without deciding that this would violate the Eighth
Amendment's prohibition on cruel and unusual punishment.

**Article 16 of the CRPD and Description of Corresponding United States
Law**

*Article 16 -- Freedom from Exploitation, Violence, and Abuse*

> 1\. States Parties shall take all appropriate legislative,
> administrative, social, educational and other measures to protect
> persons with disabilities, both within and outside the home, from all
> forms of exploitation, violence and abuse, including their gender
> based aspects.
>
> 2\. States Parties shall also take all appropriate measures to prevent
> all forms of exploitation, violence and abuse by ensuring, inter alia,
> appropriate forms of gender and age sensitive assistance and support
> for persons with disabilities and their families and caregivers,
> including through the provision of information and education on how to
> avoid, recognize and report instances of exploitation, violence and
> abuse. States Parties shall ensure that protection services are age,
> gender and disability sensitive.
>
> 3\. In order to prevent the occurrence of all forms of exploitation,
> violence and abuse, States Parties shall ensure that all facilities
> and programmes designed to serve persons with disabilities are
> effectively monitored by independent authorities.
>
> 4\. States Parties shall take all appropriate measures to promote the
> physical, cognitive and psychological recovery, rehabilitation and
> social reintegration of persons with disabilities who become victims
> of any form of exploitation, violence or abuse, including through the
> provision of protection services. Such recovery and reintegration
> shall take place in an environment that fosters the health, welfare,
> self-respect, dignity and autonomy of the person and takes into
> account gender and age specific needs.
>
> 5\. States Parties shall put in place effective legislation and
> policies, including women and child focused legislation and policies,
> to ensure that instances of exploitation, violence and abuse against
> persons with disabilities are identified, investigated and, where
> appropriate, prosecuted.

**Coverage of United States Law**

The Eighth Amendment of the United States Constitution proscribes
against cruel and unusual punishment. And while the criminal law
generally prohibits exploitation and violence against citizens, there
are no general federal statutes that specifically target violence
against people with disabilities. There are, however, some federally
supported programs recognizing the needs of people with disabilities who
are the victims of violence.[^172] Common law principles of bioethics
and individual autonomy (including those contained in state level tort
law) prohibit any persons, including individuals with disabilities, from
being subjected to medical or scientific testing or treatment without
their informed consent.

**Article 17 of the CRPD and Description of Corresponding United States
Law**

*Article 17 -- Protecting the Integrity of the Person*

> Every person with disabilities has a right to respect for his or her
> physical and mental integrity on an equal basis with others.

**Coverage of United States Law**

The history of the United States is unfortunate here. In *Buck v.
Bell*,[^173] the Supreme Court upheld a Virginia statute requiring
compulsory sterilization of people with mental retardation at the age of
18. There is also a sad history of deplorable conditions in institutions
for people with mental disabilities. One example is the landmark *Wyatt
vs. Stickney* lawsuit, which was filed in 1970 on behalf of a committed
resident. The plaintiffs in this class action lawsuit argued that the
conditions in Alabama's mental health facilities were inhumane, and the
patients lacked appropriate individualized care. By 1972 Judge Frank M.
Johnson, Jr. handed down rulings that established minimum standards for
providing treatment and habilitation in state mental health and mental
retardation facilities. Similarly, in 1988, the Hartford Courant, a
newspaper in Connecticut, documented the incidence of deaths that
occurred during or shortly after psychiatric or developmentally disabled
patients were restrained or secluded.

As a result of these and other horrors, Congress passed the Federal
Nursing Home Reform Act.[^174] Under this statute, Medicare/Medicaid
certified nursing homes cannot use physical restraints unless they are
needed to treat the resident\'s medical symptoms. Certified facilities
must care for residents in a way that maintains or enhances quality of
life, which includes giving residents have the right to make decisions
about their care and treatment. Restraints should not be used without
the consent of the resident or the legal representative. If restraints
are necessary, they must be used in a way that does not cause loss of
the ability to bathe, dress, walk, toilet, eat, and communicate.
Residents must be released from restraints and exercised at least every
two hours. The holding of the Supreme Court in *Youngberg* affirming
that the Fourteenth Amendment Due Process clause rights of individuals
with intellectual disabilities to reasonably safe conditions of
confinement, freedom from unreasonable bodily restraints, and such
minimally adequate habilitation training as reasonably might be required
by those interests is also relevant here.

And, as discussed in Article 16, standard Common law principles of
bioethics and individual autonomy (including those contained in state
level tort law) prohibit any persons, including individuals with
disabilities, from being subjected to medical or scientific testing or
treatment without their informed consent.

**Article 18 of the CRPD and Description of Corresponding United States
Law**

*Article 18 -- Liberty of movement and nationality*

> 1\. States Parties shall recognize the rights of persons with
> disabilities to liberty of movement, to freedom to choose their
> residence and to a nationality, on an equal basis with others,
> including by ensuring that persons with disabilities:
>
> \(a\) Have the right to acquire and change a nationality and are not
> deprived of their nationality arbitrarily or on the basis of
> disability;
>
> \(b\) Are not deprived, on the basis of disability, of their ability
> to obtain, possess and utilize documentation of their nationality or
> other documentation of identification, or to utilize relevant
> processes such as immigration proceedings, that may be needed to
> facilitate exercise of the right to liberty of movement;
>
> \(c\) Are free to leave any country, including their own;
>
> \(d\) Are not deprived, arbitrarily or on the basis of disability, of
> the right to enter their own country.
>
> 2\. Children with disabilities shall be registered immediately after
> birth and shall have the right from birth to a name, the right to
> acquire a nationality and, as far as possible, the right to know and
> be cared for by their parents.

**Coverage of United States Law**

The United States Constitution protects the nationality of American
citizens, as well as their mobility within the country.[^175]

Persons with disabilities are protected by the ADA and by the
Rehabilitation Act from discrimination in respect to the provision of
government services, including equal access to immigration services and
attendant documentation.

**Article 19 of the CRPD and Description of Corresponding United States
Law**

*Article 19 -- Living independently and being included in the community*

> States Parties to this Convention recognize the equal right of all
> persons with disabilities to live in the community, with choices equal
> to others, and shall take effective and appropriate measures to
> facilitate full enjoyment by persons with disabilities of this right
> and their full inclusion and participation in the community, including
> by ensuring that:
>
> \(a\) Persons with disabilities have the opportunity to choose their
> place of residence and where and with whom they live on an equal basis
> with others and are not obliged to live in a particular living
> arrangement;
>
> \(b\) Persons with disabilities have access to a range of in-home,
> residential and other community support services, including personal
> assistance necessary to support living and inclusion in the community,
> and to prevent isolation or segregation from the community;
>
> \(c\) Community services and facilities for the general population are
> available on an equal basis to persons with disabilities and are
> responsive to their needs.

**Coverage of United States Law**

The Supreme Court's 1985 decision in *City of Cleburne v. Cleburne
Living Center, Inc.* held that local zoning ordinances restricting the
choice and location of persons with disabilities to live in the
community had to meet a rational basis test to pass Constitutional
muster.[^176] When so doing, the Court ruled that "mental retardation"
was not a quasi-suspect classification, such that statutes and practices
that disadvantage disabled people by treating them differently do not
have to meet the standard of substantially furthering an important
governmental purpose. Instead, the classification need only be
rationally related to a legitimate state purpose.[^177]

Subsequently, the Supreme Court's 1999 decision in *Olmstead v
L.C.*[^178] upheld a claim by institutionalized individuals with "mental
disabilities" who asserted that the State of Georgia violated their
rights under the ADA by failing to place them into community-based
programs for which they were deemed eligible.[^179] Further, the Court
ruled that disabled persons were entitled to receive treatment in
conditions that enable them to reside in "the most integrated
setting."[^180]

As discussed *supra* in the context of accessibility, and *infra* in the
contexts of personal mobility, health, adequate standard of living and
social protection, and participation in cultural life, recreation,
leisure and sport, persons with disabilities cannot be discriminated
against in the provision of state provided services, so long as those
programs do not create a fundamental alteration in the nature of those
services.

**Article 20 of the CRPD and Description of Corresponding United States
Law**

*Article 20 -- Personal mobility*

> States Parties shall take effective measures to ensure personal
> mobility with the greatest possible independence for persons with
> disabilities, including by:
>
> \(a\) Facilitating the personal mobility of persons with disabilities
> in the manner and at the time of their choice, and at affordable cost;
>
> \(b\) Facilitating access by persons with disabilities to quality
> mobility aids, devices, assistive technologies and forms of live
> assistance and intermediaries, including by making them available at
> affordable cost;
>
> \(c\) Providing training in mobility skills to persons with
> disabilities and to specialist staff working with persons with
> disabilities;
>
> \(d\) Encouraging entities that produce mobility aids, devices and
> assistive technologies to take into account all aspects of mobility
> for persons with disabilities.

**Coverage of United States Law**

As discussed *infra* in the context of health care, persons with
disabilities can receive Medicaid and/or Medicare benefits, depending
upon their individual eligibility. As part of the benefits they provide,
these programs are a major source of funding for personal mobility
devices.

**Article 21 of the CRPD and Description of Corresponding United States
Law**

*Article 21 -- Freedom of Expression and Opinion, and Access to
Information*

> States Parties shall take all appropriate measures to ensure that
> persons with disabilities can exercise their right to freedom of
> expression and opinion, including the freedom to seek, receive and
> impart information and ideas on an equal basis with others and through
> sign languages, Braille, augmentative and alternative communication,
> and all other accessible means, modes and formats of communication of
> their choice, including by:
>
> \(a\) Providing information intended for the general public to persons
> with disabilities in accessible formats and technologies appropriate
> to different kinds of disabilities in a timely manner and without
> additional cost;
>
> \(b\) Accepting and facilitating the use of sign languages, Braille,
> augmentative and alternative communication, and all other accessible
> means, modes and formats of communication of their choice by persons
> with disabilities in official interactions;
>
> \(c\) Urging private entities that provide services to the general
> public, including through the Internet, to provide information and
> services in accessible and usable formats for persons with
> disabilities;
>
> \(d\) Encouraging the mass media, including providers of information
> through the Internet, to make their services accessible to persons
> with disabilities;
>
> \(e\) Recognizing and promoting the use of sign language.

**Coverage of United States Law**

**Information Accessibility -- State and Local Governments**

Title II of the ADA requires state and local governments to not exclude
a qualified individual with a disability from their programs, services,
or activities on the basis of disability. This includes an obligation to
"take appropriate steps to ensure that communications with applicants,
participants, and members of the public with disabilities are as
effective as communications with others."[^181]

The Title II regulations provide that auxiliary aids and services be
furnished when necessary to afford an individual with a disability an
equal opportunity to participate in and enjoy the programs, services, or
activities of the public entity.[^182] The effective communication
obligation is owed to people with hearing, speech, and vision
disabilities. In terms of types of auxiliary aids and services, a public
entity is to "give primary consideration to the requests of the
individual with disabilities."[^183] Auxiliary aids and services for
people with hearing impairments include qualified interpreters,
notetakers, written materials, amplifiers, captioning, TTYs and
others.[^184] For people with vision impairments they include qualified
readers, taped text, Braille, large print, assistance locating items,
and others.[^185] For people with speech disabilities they include TTDs,
computer terminals, speech synthesizers, communication boards, and
others. The regulations provide that a public entity does not need to
take any action that it can demonstrate would result in a fundamental
alteration or an undue financial and administrative burden.[^186] The
public entity has the burden of proving undue burden or fundamental
alteration, and the decision must be made by the head of the public
agency in writing. Generally, provided that the accommodation that is
offered is effective, courts have not been swayed by a request for a
specific type of accommodation.[^187] Finally, under Title II, websites
that are run by the state and local governments should be
accessible.[^188]

**Information Accessibility -- Federal Government**

Section 508 of the Rehabilitation Act of 1973 requires that federal
agencies\' electronic and information technology be accessible to people
with disabilities. The law applies to all Federal agencies when they
develop, procure, maintain, or use electronic and information
technology. Under Section 508, agencies must give disabled employees and
members of the public access to information that is comparable to the
access available to others. The Architectural and Transportation
Barriers Compliance Board ("Access Board") is responsible for publishing
standards for electronic accessibility, which they have done.[^189]

**Information Accessibility -- Private Entities**

Title III of the ADA prohibits privately owned places of public
accommodation from discriminating on the basis of disability. The
statute defines discrimination to include "a failure to take such steps
as may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise treated differently
than other individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered or would result in
an undue burden."[^190] The regulations define "auxiliary aides and
services" to include "qualified interpreters, note-takers, computer
aided transcription services, written materials, telephone handset
amplifiers, assistive listening devices, assistive listening systems,
telephones compatible with hearing aids, closed caption decoders, open
and closed captioning, telecommunications devices for deaf persons
(TDDs), videotext displays . . . qualified readers, taped texts, audio
recordings, Brailled materials, \[and\] large print materials."[^191]

Regarding the Internet, thus far courts have concluded that privately
owned stand-alone Internet websites are not covered by Title III of the
ADA. However, websites that have a nexus to an actual physical place of
public accommodation may have to be accessible of a program, service, or
activity of the place of public accommodation.[^192]

Title IV of the ADA and its implementing regulations[^193] address
telephone and television access for people with hearing and speech
disabilities. They require common carriers (telephone companies) to
establish interstate and intrastate telecommunications relay services
(TRS) 24 hours a day, 7 days a week. TRS enables callers with hearing
and speech disabilities who use telecommunications devices for the deaf
(TDDs) and callers who use voice telephones to communicate with each
other through a third party communications assistant. The Federal
Communications Commission (FCC) has set minimum standards for TRS
services. Title IV also requires closed captioning of Federally funded
public service announcements.

Pursuant to the Telecommunications Act of 1996,[^194] the FCC has
adopted rules requiring closed captioning of most, though not all,
television programming.

Finally, the Assistive Technology Act of 1998 [^195] provides federal
support for research and promotion of assistive technology.

**Article 22 of the CRPD and Description of Corresponding United States
Law**

*Article 22 -- Respect for Privacy*

> 1\. No person with disabilities, regardless of place of residence or
> living arrangements, shall be subjected to arbitrary or unlawful
> interference with his or her privacy, family, home or correspondence
> or other types of communication or to unlawful attacks on his or her
> honour and reputation. Persons with disabilities have the right to the
> protection of the law against such interference or attacks.
>
> 2\. States Parties shall protect the privacy of personal, health and
> rehabilitation information of persons with disabilities on an equal
> basis with others.

**Coverage of United States Law**

Defamation law, which protects against attacks on honor or reputation,
is largely a creation of state law. That said, at least one commentator
has recently pointed out the prevalence of harassment on the basis of
disability in both the educational and employment contexts, as well as
the insufficient existing legal responses under both the ADA and
IDEA.[^196]

Federal prosecution is permitted of a person who "by force or threat of
force willfully injures, intimidates, or interferes with . . . any
person because of his race, color, religion or national origin and
because he is or has been" attempting to engage in one of six types of
federally protected activities (including voting or going to
school).[^197] Disability is not one of the protected categories.
Current statistics gathered by the FBI and Department of Justice show
that roughly 1% of the hate crimes committed are done so with disability
animus as a motivating factor.[^198]

There is one place where the right to privacy of one's
disability-related medical information is explicitly and forcefully
protected. If an employer administers any type of medical test or
inquiry, the employer must treat the results as confidential medical
records. The ADA tightly controls how this information can be used, and
who has access to the information.[^199]

**Article 23 of the CRPD and Description of Corresponding United States
Law**

*Article 23 -- Respect for Home and the Family*

> 1\. States Parties shall take effective and appropriate measures to
> eliminate discrimination against persons with disabilities in all
> matters relating to marriage, family, parenthood and relationships, on
> an equal basis with others, so as to ensure that:
>
> \(a\) The right of all persons with disabilities who are of
> marriageable age to marry and to found a family on the basis of free
> and full consent of the intending spouses is recognized;
>
> \(b\) The rights of persons with disabilities to decide freely and
> responsibly on the number and spacing of their children and to have
> access to age-appropriate information, reproductive and family
> planning education are recognised, and the means necessary to enable
> them to exercise these rights and the equal opportunity to retain
> their fertility are provided;
>
> \(c\) Persons with disabilities, including children, shall retain
> their fertility on an equal basis with others.
>
> 2\. States Parties shall ensure the rights and responsibilities of
> persons with disabilities, with regard to guardianship, wardship,
> trusteeship and adoption of children, or similar institutions where
> these concepts exist in national legislation; in all cases the
> interests of the children shall be paramount. States Parties shall
> render appropriate assistance to persons with disabilities in the
> performance of their child-rearing responsibilities.
>
> 3\. States Parties shall ensure that children with disabilities have
> equal rights with respect to family life. With a view to realising
> these rights, and to prevent concealment, abandonment, neglect and
> segregation of children with disabilities, States Parties shall
> undertake to provide early and comprehensive information, services and
> support to children with disabilities and their families.
>
> 4\. States Parties shall ensure that a child shall not be separated
> from his or her parents against their will, except when competent
> authorities subject to judicial review determine, in accordance with
> applicable law and procedures, that such separation is necessary for
> the best interests of the child. In no case shall a child be separated
> from parents on the basis of a disability of either the child or one
> or both of the parents.
>
> 5\. States Parties shall undertake that where the immediate family is
> unable to care for a child with disabilities, to take every effort to
> provide alternative care within the wider family, and failing that,
> within the community in a family setting.

**Coverage of United States Law**

Family law is generally an area that is left to the states, subject to
limitations set by the U.S. Constitution or federal statutes. The
Supreme Court has recognized the importance of marriage and procreation
as among "the basic civil rights of man."[^200] Although the Court has
never expressly done so, commentators have suggested that this and
similar cases extend the basic right to marry and procreation to people
with mental disabilities. Compulsory sterilization for people with
mental retardation was upheld in *Buck v. Bell*,[^201] and although this
case has never formally overruled, it is doubtful that it can still be
considered good law.

Based on the fundamental right of the nature to keep one's family
together, the Court has held that a state can only terminate parental
rights through an individualized inquiry rather than a presumption based
on an ascribed status.[^202]

Some courts have held that state termination proceedings, like all state
court proceedings, are covered by Title II of the ADA.[^203] Therefore
the courts, the Department of Health and Human Services (HHS) and child
protective services must make reasonable modifications to their rules,
policies, and practices of the services they provide in accommodating
persons with disabilities that utilize their services. The services
provided by these entities include individual assessments and
reunification programs designed to evaluate and assist persons in
developing their parenting skills when their children are removed from
their custody.[^204] Other courts, however, have refused to permit
parents with disabilities to assert, as grounds opposing termination of
their parental rights, that termination would violate their rights under
the ADA.[^205]

**Article 24 of the CRPD and Description of Corresponding United States
Law**

*Article 24 -- Education*

> 1\. States Parties recognize the right of persons with disabilities to
> education. With a view to realizing this right without discrimination
> and on the basis of equal opportunity, States Parties shall ensure an
> inclusive, education system at all levels, and life-long learning,
> directed to:
>
> \(a\) The full development of the human potential and sense of dignity
> and self worth, and the strengthening of respect for human rights,
> fundamental freedoms and human diversity;
>
> \(b\) The development by persons with disabilities of their
> personality, talents and creativity, as well as their mental and
> physical abilities, to their fullest potential;
>
> \(c\) Enabling persons with disabilities to participate effectively in
> a free society.
>
> 2\. In realizing this right, States Parties shall ensure:
>
> \(a\) That persons with disabilities are not excluded from the general
> education system on the basis of disability, and that children with
> disabilities are not excluded from free and compulsory primary and
> secondary education on the basis of disability;
>
> \(b\) That persons with disabilities can access an inclusive, quality,
> free primary and secondary education on an equal basis with others in
> the communities in which they live;
>
> \(c\) Reasonable accommodation of the individual's requirements;
>
> \(d\) That persons with disabilities receive the support required,
> within the general education system, to facilitate their effective
> education;
>
> \(e\) That effective individualized support measures are provided in
> environments that maximize academic and social development, consistent
> with the goal of full inclusion.
>
> 3\. States Parties shall enable persons with disabilities to learn
> life and social development skills to facilitate their full and equal
> participation in education and as members of the community. To this
> end, States Parties shall take appropriate measures, including:
>
> \(a\) Facilitating the learning of Braille, alternative script,
> augmentative and alternative modes, means and formats of
> communication, orientation and mobility skills, and facilitating peer
> support and mentoring;
>
> \(b\) Facilitating the learning of sign language and the promotion of
> the linguistic identity of the deaf community;
>
> \(c\) Ensuring that the education of persons, and in particular
> children, who are blind, deaf and deafblind, is delivered in the most
> appropriate languages and modes and means of communication for the
> individual, and in environments which maximize academic and social
> development.
>
> 4\. In order to help ensure the realization of this right, States
> Parties shall take appropriate measures to employ teachers, including
> those with disabilities, who are qualified in sign language and
> Braille, and to train professionals and staff who work at all levels
> of education. Such training shall incorporate disability awareness and
> the use of appropriate augmentative and alternative modes, means and
> formats of communication, educational techniques and materials to
> support persons with disabilities.
>
> 5\. States Parties shall ensure that persons with disabilities are
> able to access general tertiary education, vocational training, adult
> education and lifelong learning without discrimination and on an equal
> basis with others. To this end, States Parties shall ensure that
> reasonable accommodation is provided to persons with disabilities.

**Coverage of United States Law**

The primary statutory vehicle for the educational rights of persons with
disabilities is the Individuals with Disabilities Education Act
(IDEA)*.* The primary stated purposes of the IDEA are:

> (1)(A) to ensure that all children with disabilities have available to
> them a free appropriate public education that emphasizes special
> education and related services designed to meet their unique needs and
> prepare them for employment and independent living;
>
> \(B\) to ensure that the rights of children with disabilities and
> parents of such children are protected; and
>
> \(C\) to assist States, localities, educational service agencies, and
> Federal agencies to provide for the education of all children with
> disabilities;[^206]

The IDEA provides federal funding to states to support special education
services in public elementary and secondary schools. This funding is
based on the number of children in the state receiving special education
services multiplied by the average per-pupil cost of public education in
the United States. The IDEA authorizes federal funding grants of only
40% of that average cost. Congress has not allocated sufficient funds to
cover its entire 40% portion of special education costs, leaving states
to fund much of their own compliance with their obligations under the
IDEA.

The primary requirements of the IDEA are Free Appropriate Public
Education (FAPE), Least Restrictive Environment, and Procedural Due
Process, and "Child Find." The IDEA requires each state to provide
"\[a\] free appropriate public education . . . to all children with
disabilities residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been suspended
or expelled from school."[^207] This requirement is commonly referred to
as FAPE. In order to ensure that FAPE is being provided to every
eligible child, the IDEA requires states to identify, locate, and
evaluate "\[a\]ll children with disabilities residing in the State,
including children with disabilities attending private schools,
regardless of the severity of their disabilities, and who are in need of
special education and related services." ("Child Find").[^208]

The IDEA requires that public education for children with disabilities
be provided in the least restrictive environment appropriate to them,
meaning, that "children with disabilities . . . are educated with
children who are not disabled, and special classes, separate schooling,
or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the
disability of a child is such that education in regular classes with the
use of supplementary aids and services cannot be achieved
satisfactorily."[^209]

The procedural due process requirements of the IDEA include the
requirement to evaluate children to determine their eligibility for
special education services, provide individualized education programs
(IEPs) developed by IEP teams, ensure parental notice, consent, and
access to records, and offer mediation and access to impartial hearings
to resolve disputes. In addition, the IDEA imposes a "stay put"
requirement preventing schools from expelling or suspending students
with disabilities or otherwise changing their educational placements
without meeting due process requirements.[^210]

Unlike the ADA and Rehabilitation Act, which cover any qualified
individual with a mental or physical impairment that substantially
limits a major life activity, the IDEA protects "children with
disabilities" ages three through twenty-one,[^211] defined as those

> \(i\) with mental retardation, hearing impairments (including
> deafness), speech or language impairments, visual impairments
> (including blindness), serious emotional disturbance (hereinafter
> referred to as "emotional disturbance"), orthopedic impairments,
> autism, traumatic brain injury, other health impairments, or specific
> learning disabilities; and
>
> \(ii\) who, by reason thereof, needs special education and related
> services.
>
> Id. § 1401(3)(A).

For children ages 3 through 9, states have discretion to cover children
with other impairments, such as developmental delay, who need special
education and related services as a result of those impairments.[^212]
In order to be eligible for special education, a child must both have
one of the 10 categories of disabilities and "by reason thereof" need
special education and related services.

The IDEA is not the sole source of states' special educational
obligations. There are constitutional requirements as well. In
*Pennsylvania Ass'n for Retarded Children v. Pennsylvania*,[^213] the
court approved a consent decree finding that, under the Equal Protection
Clause of the United States Constitution, having undertaken to provide
free public education, Pennsylvania must educate all children, including
those with disabilities. Moreover, "\[i\]t is the Commonwealth's
obligation to place each mentally retarded child in a free, public
program of education and training appropriate to the child's
capacity."[^214] The court also applied the principle from *Brown v.
Board of Education of Topeka*,[^215] that separate education is
inherently unequal and, therefore, applied a presumption that "placement
in a regular public school class is preferable to placement in a special
public school class and placement in a special public school class is
preferable to placement in any other type of program of education and
training."[^216] Similarly, in *Mills v. Board of Education of District
of Columbia*,[^217] the court granted summary judgment to a class of
children with disabilities, finding that the Equal Protection Clause
required inclusion of children with disabilities in public education
and, further, that the additional cost of such education was not a
defense.

Both the ADA and Section 504 of the Rehabilitation Act also have
applicability to the education of people with disabilities. Private
educational institutions at all levels fall within the definition of
Title III of the ADA, and public educational institutions fall within
Title II. Any educational institution that receives federal funds --
which includes most public schools and universities -- are also covered
under the Rehabilitation Act. Therefore, generally speaking, these
entities cannot discriminate on the basis of disability. Courts have
interpreted this to apply to the physical accessibility of
campuses,[^218] and a requirement to provide interpreters at no cost to
students,[^219] amongst others.

**Article 25 of the CRPD and Description of Corresponding United States
Law**

*Article 25 -- Health*

> States Parties recognize that persons with disabilities have the right
> to the enjoyment of the highest attainable standard of health without
> discrimination on the basis of disability. States Parties shall take
> all appropriate measures to ensure access for persons with
> disabilities to health services that are gender sensitive, including
> health-related rehabilitation. In particular, States Parties shall:
>
> \(a\) Provide persons with disabilities with the same range, quality
> and standard of free or affordable health care and programmes as
> provided other persons, including in the area of sexual and
> reproductive health and population-based public health programmes;\
> (b) Provide those health services needed by persons with disabilities
> specifically because of their disabilities, including early
> identification and intervention as appropriate, and services designed
> to minimize and prevent further disabilities, including among children
> and the elderly;
>
> \(c\) Provide these health services as close as possible to people's
> own communities, including in rural areas;
>
> \(d\) Require health professionals to provide care of the same quality
> to persons with disabilities as to others, including on the basis of
> free and informed consent by, inter alia, raising awareness of the
> human rights, dignity, autonomy and needs of persons with disabilities
> through training and the promulgation of ethical standards for public
> and private health care;
>
> \(e\) Prohibit discrimination against persons with disabilities in the
> provision of health insurance, and life insurance where such insurance
> is permitted by national law, which shall be provided in a fair and
> reasonable manner;
>
> \(f\) Prevent discriminatory denial of health care or health services
> or food and fluids on the basis of disability.

**Coverage of United States Law**

The United States has no universal health coverage system. The closest
programs offered by the federal and state governments are Medicare and
Medicaid. Medicare is a health insurance program administered by the
federal government. To receive Medicare, a working-age individual with a
disability must first become eligible for Social Security Disability
Insurance by showing that he or she is unable to do any "substantial
gainful work which exists in the national economy."[^220] There is then
a two-year waiting period to receive Medicare. Part A of Medicare covers
hospital insurance (including stays in a skilled nursing facility), Part
B covers medical insurance, Part C gives beneficiaries the option of
receiving Medicare benefits through private health insurance plans, and
Part D offers a prescription drug benefit. Medicaid is a federal-state
cooperative program that provides medical benefits of different types to
various needy populations. States do not have to participate in
Medicaid, but all have. States have flexibility in deciding what
populations they have to cover and what benefits they will provide,
although the Medicaid statute does set have several requirements in
terms of coverage and services. In most states, an individual who meets
the Social Security Act's definition of disability can receive Medicaid
coverage.

To the extent that health care services are provided by private
entities, they are covered by Title III of the ADA; to the extent that
they are provided by public entities, they are covered by Title II and
Section 504 of the Rehabilitation Act. There is a line of cases
suggesting that health care providers cannot discriminate on the basis
of disability.[^221] Other cases, however, have held that actions which
are "neutral" but have the effect of impacting people with disabilities
more harshly than the general population are acceptable under these
statutes.[^222]

Insurance also occupies an uncertain place under the ADA. The courts are
split on whether insurance policies are covered as public accommodations
under the statute.[^223] The ADA itself has a "safe harbor" provision
regarding insurance.[^224] At least one Circuit Court has construed this
provision to mean that the ADA does generally apply to the content of
insurance policies.[^225] Most circuits, however, have not applied the
provisions of Title III to the substance of insurance policies.[^226]

Regarding medical treatment in the community, both the ADA and its
regulations provide that public entities must administer services,
programs, or activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities. In *Olmstead v.
Zimring*,[^227] two women with mental retardation and psychiatric
conditions brought suit under Title II, claiming that the state of
Georgia had discriminated against them by keeping them in
institutionalized settings instead of community placements that were
more appropriate for their needs. The State's professionals had
determined that community-based settings would be more appropriate for
the women, but none were available. The Court held that this unjustified
institutional isolation constituted discrimination within the meaning of
Title II. However, the Court recognized that the duty to accommodate was
not absolute. In deciding whether this accommodation would fundamentally
alter the state's mental health treatment program, the proper inquiry
was not the cost of accommodating these two plaintiffs weighted against
the states' overall mental health budget.

**Article 27 of the CRPD and Description of Corresponding United States
Law**

*Article 27 -- Work and Employment*

> 1\. States Parties recognize the right of persons with disabilities to
> work, on an equal basis with others; this includes the right to the
> opportunity to gain a living by work freely chosen or accepted in a
> labour market and work environment that is open, inclusive and
> accessible to persons with disabilities. States Parties shall
> safeguard and promote the realization of the right to work, including
> for those who acquire a disability during the course of employment, by
> taking appropriate steps, including through legislation, to, inter
> alia:
>
> \(a\) Prohibit discrimination on the basis of disability with regard
> to all matters concerning all forms of employment, including
> conditions of recruitment, hiring and employment, continuance of
> employment, career advancement, and safe and healthy working
> conditions;
>
> \(b\) Protect the rights of persons with disabilities, on an equal
> basis with others, to just and favourable conditions of work,
> including equal opportunities and equal remuneration for work of equal
> value, safe and healthy working conditions, including protection from
> harassment, and the redressing of grievances;
>
> \(c\) Ensure that persons with disabilities are able to exercise their
> labour and trade union rights on an equal basis with others;
>
> \(d\) Enable persons with disabilities to have effective access to
> general technical and vocational guidance programmes, placement
> services and vocational and continuing training;
>
> \(e\) Promote employment opportunities and career advancement for
> persons with disabilities in the labour market, as well as assistance
> in finding, obtaining and maintaining and returning to employment;
>
> \(f\) Promote opportunities for self-employment, entrepreneurship, the
> development of cooperatives and starting one's own business;
>
> \(g\) Employ persons with disabilities in the public sector;
>
> \(h\) Promote the employment of persons with disabilities in the
> private sector through appropriate policies and measures, which may
> include affirmative action programmes, incentives and other measures;
>
> \(i\) Ensure that reasonable accommodation is provided to persons with
> disabilities in the workplace;
>
> \(j\) Promote the acquisition by persons with disabilities of work
> experience in the open labour market;
>
> \(k\) Promote vocational and professional rehabilitation, job
> retention and return-to-work programmes for persons with disabilities.
>
> 2\. States Parties shall ensure that persons with disabilities are not
> held in slavery or in servitude, and are protected, on an equal basis
> with others, from forced or compulsory labour.

**Coverage of United States Law**

The United States has several sources of law that bear upon the
employment of people with disabilities. As a starting place, the Due
Process and Equal Protection Clauses of the United States Constitution,
which only apply to state action, offer little in the way of protection
for the rights of people with disabilities. As for the Due Process
Clause, the Supreme Court held "the right to hold specific private
employment and to follow a chosen profession free from unreasonable
governmental interference comes within the 'liberty' and 'property'
concepts of the Fifth Amendment."[^228] But states are free to regulate
employment, and the courts will only review those regulations using
rational basis review.[^229] Similarly, the Court has held that under
the Equal Protection Clause, state regulation that draws lines on the
basis of disability will only be reviewed under the rational basis
standard.[^230]

Statutory protection is far stronger. Title I of the ADA provide that
"no covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment."[^231] A "covered entity" is
defined as an employer with 15 or more employees.[^232] Discrimination
is defined as, amongst other things, "not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business of such covered entity; or . . . denying employment
opportunities to a job applicant or employee who is an otherwise
qualified individual with a disability, if such denial is based on the
need of such covered entity to make reasonable accommodation to the
physical or mental impairments of the employee or applicant."[^233]
Title I defines reasonable accommodation to include "making existing
facilities used by employees readily accessible to and usable by
individuals with disabilities; . . . and job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities."[^234]

An employer does not have to provide an accommodation that would be an
undue hardship (defined as an action that would require significant
difficulty or expense)[^235] or would pose a direct threat to the health
or safety of others in the workplace.[^236]

The Rehabilitation Act relates to employment for federal employees.
Section 501 requires affirmative action and nondiscrimination in
employment by Federal agencies of the executive branch.[^237] Section
503 requires affirmative action and prohibits employment discrimination
by Federal government contractors and subcontractors with contracts of
more than \$10,000.[^238] The regulations provide that the "Federal
Government shall be a model employer of individuals with disabilities.
Agencies shall give full consideration to the hiring, placement, and
advancement of qualified individuals with disabilities."[^239]

Employees of state agencies are covered under both Title I (and perhaps
Title II) of the ADA, as well as Section 504 of the Rehabilitation Act,
which prohibits discrimination on the basis of disability for entities
that receive federal funding. Regarding employment discrimination,
however, individuals may only sue state employers for prospective
injunctive relief (using *Ex Parte Young*)[^240] under Title I of the
ADA.[^241] There is currently a split as to whether individuals can sue
state employers for damages for disability discrimination under the
Rehabilitation Act.[^242]

Regarding workplace safety issues, U.S. employees reached by Congress'
interstate commerce power are protected from hazards that present
significant risks of material health impairment in the workplace under
the Occupational Safety and Health Act (OSHA).[^243] Employers are
required to comply with safety rules promulgated pursuant to OSHA.[^244]

All alleged violations of ADA employment provisions must be filed with
the EEOC, which is charged with investigating these complaints and
finding remedies. Possible remedies include hiring, reinstatement,
promotion, back pay, front pay, restored benefits, reasonable
accommodation, attorneys' fees, expert witness fees, and court costs.
Violations of the employment provisions of the Rehab Act by federal
contractors and subcontractors can be reported to the Office of Federal
Contract Compliance Programs (OFCCP) of the U.S. Department of Labor.
The OFCCP will investigate and remedy violations similar to those
procedures carried out by the EEOC. In addition to administrative
support from EEOC, the United States has a network of Protection and
Advocacy (P&A) systems and Client Assistance Programs (CAP) for
individuals with disabilities. Each state is appropriated funding from
the federal budget, in combination with state and private funding, to
implement and administer a P&A/CAP system. P&As provide legal
representation and other advocacy services, under all federal and state
laws, to all people with disabilities. CAPs provide information and
assistance to individuals seeking or receiving vocational rehabilitation
. . . services under the Rehabilitation Act, including assistance in
pursuing administrative, legal and other appropriate remedies.

The Workforce Investment Act of 1998 (WIA) establishes state and local
Workforce Investment Boards responsible for developing a "one-stop"
delivery system of accessible, innovative, and comprehensive employment
services.[^245] They partner with local vocational rehabilitation
agencies, businesses, and job training and education programs to assist
local communities in increasing employment. The one-stop system also
provides assistance in job search activities, career planning, job skill
assessments and training, and childcare resources. One-stops also
provide resources for job and entrepreneurial training, transportation
and housing assistance, and access to affordable health coverage.

Among working Americans with disabilities, almost one-fifth have no
health insurance coverage, largely because their incomes (though low by
most standards) exceed Medicaid eligibility levels and their employers
do not offer coverage. The Ticket to Work And Work Incentives
Improvement Act ("TWWIIA") was passed to address this and other issues.
TWIAA provides benefits to eligible individuals with disabilities who
want to and are capable of working.[^246] One benefit allows working
individuals with disabilities the option of maintaining Medicaid health
insurance coverage. This promotes the ability of participants to return
to work without the loss of essential health care benefits.

TWWIIA's Ticket to Work and Self-Sufficiency Program provides recipients
of disability insurance with a "ticket" to purchase employment training
services from qualified Employment Networks (ENs). The goal is to
encourage individuals with disabilities to seek employment
rehabilitation services that aid in attaining employment and to reduce
dependence on governmental benefit programs. Ticket program services
include the provision of case management, workplace accommodations, peer
mentoring, job training, and transportation assistance. ENs receive
payment from SSA when they succeed in placing the participant in
employment. Public and private organizations may apply to be ENs, as may
family and friends who meet the EN qualifications. To date, more than
one-third of the states have implemented TWWIIA and others have passed
legislation creating similar programs.

**Article 28 of the CRPD and Description of Corresponding United States
Law**

*Article 28 -- Adequate standard of living and social protection*

> 1\. States Parties recognize the right of persons with disabilities to
> an adequate standard of living for themselves and their families,
> including adequate food, clothing and housing, and to the continuous
> improvement of living conditions, and shall take appropriate steps to
> safeguard and promote the realization of this right without
> discrimination on the basis of disability.
>
> 2\. States Parties recognize the right of persons with disabilities to
> social protection and to the enjoyment of that right without
> discrimination on the basis of disability, and shall take appropriate
> steps to safeguard and promote the realization of this right,
> including measures:
>
> \(a\) To ensure equal access by persons with disabilities to clean
> water services, and to ensure access to appropriate and affordable
> services, devices and other assistance for disability-related needs;
>
> \(b\) To ensure access by persons with disabilities, in particular
> women and girls with disabilities and older persons with disabilities,
> to social protection programmes and poverty reduction programmes;
>
> \(c\) To ensure access by persons with disabilities and their families
> living in situations of poverty to assistance from the State with
> disability-related expenses, including adequate training, counselling,
> financial assistance and respite care;
>
> \(d\) To ensure access by persons with disabilities to public housing
> programmes;
>
> \(e\) To ensure equal access by persons with disabilities to
> retirement benefits and programmes.

**Coverage of United States Law**

Persons with disabilities are protected by the ADA and the
Rehabilitation Act from discrimination in respect to the provision of
government services, including equal access to social assistance, clean
water, assistive devices, public housing, and retirement benefits, so
long as the provision of such services does not cause a fundamental
alteration to state programs providing any of those services.

The United States operates income support schemes for persons with
disabilities, depending upon eligibility criteria. The largest of these
programs are the Social Security Disability Insurance (SSDI) scheme that
pays benefits to persons with disabilities and a limited number of
family members in the event that a person who was employed and paying
Social Security taxes for a sufficient amount of time becomes unable to
work, and the Supplemental Security Income program that provides
benefits to disabled persons on the basis of financial need.[^247]
Although these schemes differ in their eligibility criteria, each
requires recipients to meet medically-based standards.[^248]

**Article 29 of the CRPD and Description of Corresponding United States
Law**

*Article 29 -- Participation in Political and Public Life*

> States Parties shall guarantee to persons with disabilities their
> political rights and the opportunity to enjoy them on an equal basis
> with others, and shall undertake to:
>
> \(a\) Ensure that persons with disabilities can effectively and fully
> participate in political and public life on an equal basis with
> others, directly or through freely chosen representatives, including
> the right and opportunity for persons with disabilities to vote and be
> elected, inter alia, by:\
> (i) Ensuring that voting procedures, facilities and materials are
> appropriate, accessible and easy to understand and use;\
> (ii) Protecting the right of persons with disabilities to vote by
> secret ballot in elections and public referendums, without
> intimidation, and to stand for elections and to effectively hold
> office and perform all public functions at all levels of government,
> facilitating the use of assistive and new technologies where
> appropriate;\
> (iii) Guaranteeing the free expression of the will of persons with
> disabilities as electors and to this end, where necessary, at their
> request, allowing assistance in voting by a person of their own
> choice.\
> (b) Promote actively an environment in which persons with disabilities
> can effectively and fully participate in the conduct of public
> affairs, without discrimination and on an equal basis with others, and
> encourage their participation in public affairs, including:\
> (i) Participation in non-governmental organizations and associations
> concerned with the public and political life of the country, and in
> the activities and administration of political parties;\
> (ii) Forming and joining organizations of persons with disabilities to
> represent persons with disabilities at international, national,
> regional and local levels.

**Coverage of United States Law**

Under United States constitutional law, voting is a "fundamental right,"
meaning that government infringements on the right to vote are subject
to strict scrutiny. However, there is no developed body of
constitutional law protecting the right of people with disabilities to
vote in polling places, or secretly and independently, in part because
courts have not typically applied strict scrutiny to claims involving
the right to vote in a particular manner.[^249] The one exception is in
cases involving blanket disenfranchisement of people with certain mental
disabilities.[^250]

There are several United States statutes that deal with disability and
political participation, particularly as it involves voting. There are
three pre-ADA laws that address voting and disability. The Voting Rights
Act of 1965 (amended in 1982), provides that any voter who requires
assistance to vote by reason of blindness or other disability may be
given assistance by a person of the voter\'s choice, other than the
voter\'s employer or agent of that employer or officer or agent of the
voter\'s union. This statute applies only to federal elections. The
Voting Accessibility for the Elderly and Handicapped Act provides that
"\[w\]ithin each State . . . each political subdivision responsible for
conducting elections shall assure that all polling places for Federal
elections are accessible to handicapped and elderly voters."[^251] This
statute, which does not purport to define "accessibility," also applies
only to federal elections. Section 504 of the Rehabilitation Act of
1973,[^252] prohibiting discrimination on the basis of disability in
programs or activities receiving Federal financial assistance, applies
to elections.

There are two provisions in the ADA that address voting, although not
directly.[^253] First, courts have uniformly held that voting is a
"service, program, or activity" for purposes of Title II, which
prohibits discrimination by public entities.[^254] This means that the
voting systems offered by public entities, when viewed in their
entirety, must be readily accessible to and usable by people with
disabilities, unless to do so would result in a fundamental alteration
or cause an undue financial administrative burden (the "program access"
standard). Second, Title III of the ADA, prohibiting discrimination on
the basis of disability in privately owned places of public
accommodation, is also relevant to voting. Some structures used for
polling places\--such as schools and recreational centers are covered by
Title III independent of their use as polling places.

The most actively litigated area in voting and disability has been the
program access standard of ADA Title II and the Rehabilitation Act.
These cases fall into three categories. The first category involves
cases challenging physically inaccessible polling places.[^255] The
second category of cases involves cases arguing that Title II requires
secret and independent voting opportunities for people with
disabilities. The cases have split on this issue.[^256] The third
category of cases involves challenges to curtailment of voting
opportunities for people with mental disabilities.[^257]

The last federal law impacting the voting rights of people with
disabilities is the Help America Vote Act (HAVA).[^258] Amongst other
things, HAVA provides funds to make polling places, including the path
of travel, entrances, exits, and voting areas of each polling facility,
accessible to individuals with disabilities, in a manner that provides
the same opportunities for access and participation (including privacy
and independence) as for other voters.[^259] HAVA also provides a that
voting systems shall be accessible for individuals with disabilities,
including non-visual accessibility for the blind and visually impaired,
in a manner that provides the same opportunity for access and
participation (including privacy and independence) as for other
voters.[^260]

Finally, in terms of organizations dedicated to promoting the role of
people with disabilities in the political process, the National Council
on Disability is a an independent federal agency charged with making
recommendations to the President and Congress to enhance the quality of
life for all Americans with disabilities and their families.

**Article 30 of the CRPD and Description of Corresponding United States
Law**

*Article 30 -- Participation in Cultural Life, Recreation, Leisure, and
Sport*

> 1\. States Parties recognize the right of persons with disabilities to
> take part on an equal basis with others in cultural life, and shall
> take all appropriate measures to ensure that persons with
> disabilities:
>
> \(a\) Enjoy access to cultural materials in accessible formats;
>
> \(b\) Enjoy access to television programmes, films, theatre, and other
> cultural activities, in accessible formats;
>
> \(c\) Enjoy access to places for cultural performances or services,
> such as theatres, museums, cinemas, libraries and tourism services,
> and, as far as possible, enjoy access to monuments and sites of
> national cultural importance.
>
> 2\. States Parties shall take appropriate measures to enable persons
> with disabilities to have the opportunity to develop and utilize their
> creative, artistic and intellectual potential, not only for their own
> benefit, but also for the enrichment of society.
>
> 3\. States Parties shall take all appropriate steps, in accordance
> with international law, to ensure that laws protecting intellectual
> property rights do not constitute an unreasonable or discriminatory
> barrier to access by persons with disabilities to cultural materials.
>
> 4\. Persons with disabilities shall be entitled, on an equal basis
> with others, to recognition and support of their specific cultural and
> linguistic identity, including sign languages and deaf culture.
>
> 5\. With a view to enabling persons with disabilities to participate
> on an equal basis with others in recreational, leisure and sporting
> activities, States Parties shall take appropriate measures:
>
> \(a\) To encourage and promote the participation, to the fullest
> extent possible, of persons with disabilities in mainstream sporting
> activities at all levels;
>
> \(b\) To ensure that persons with disabilities have an opportunity to
> organize, develop and participate in disability-specific sporting and
> recreational activities, and to this end, encourage the provision, on
> an equal basis with others, of appropriate instruction, training and
> resources;
>
> \(c\) To ensure that persons with disabilities have access to sporting
> and recreational and tourism venues;
>
> \(d\) To ensure that children with disabilities have equal access to
> participation in play, recreation, and leisure and sporting
> activities, including those activities in the school system;
>
> \(e\) To ensure that persons with disabilities have access to services
> from those involved in the organization of recreational, tourism,
> leisure and sporting activities.

**Coverage of United States Law**

United States domestic law has several provisions that prevent
discrimination against people with disabilities in cultural life,
recreation, leisure, and sport. Many such activities take place at
privately owned places of public accommodation -- that is, privately
owned businesses or establishments that open themselves up to the public
-- and are covered by Title III of the ADA.[^261] As such, the owners
and operators cannot discriminate in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations.[^262]

Title III's reach has therefore extended significantly into recreation
and cultural opportunities for people with disabilities. The organizers
of sports and recreation activities must make reasonable accommodations
unless such accommodation would fundamentally alter the nature of the
goods or services being provided.[^263] Thus, for example, the
Professional Golf Association had to provide a golf cart as a reasonable
accommodation to a professional golfer to allow him to participate in
tournament play.[^264] A requested accommodation also does not have to
made if it causes a direct threat to the health or safety of
others.[^265] Title III has been applied to sports leagues; i.e., its
coverage is not limited to actual locations.[^266]

As discussed above, pursuant to the Telecommunications Act of
1996,[^267] the Federal Communications Commission has adopted rules
requiring closed captioning of most, though not all, television
programming.

Similarly, as with any Title III covered entity, facilities that house
cultural and recreational opportunities have accessibility obligations.
Facilities that predate the ADA must be accessible to the extent that
doing so is "readily achievable," and new facilities (and modifications
to existing facilities) must be more fully accessible to people with
disabilities in accordance with the ADAAG standards. The accessibility
of entertainment venues (sports stadiums and movie theatres) has been a
heavily litigated area. In particular, there have been several "line of
sight" cases, involving the issue of whether people who used wheelchairs
are entitled to seats where they can see over people who stand in the
rows in front of them.[^268] Another frequently litigated issue is
whether wheelchair seating in stadium-style movie theaters must offer
choices of position within the theater, and to what extent wheelchair
seating must be integrated into the stadium seating section of the
theater.[^269]

Some of the parties that control and manage recreational opportunities
are public entities; for example, public parks and high school athletic
associations. Therefore, Title II of the ADA and Section 504 of the
Rehabilitation Act (to the extent these entities receive federal funds)
are relevant as well. A public entities' obligations regarding
recreation opportunities under Title II and Section 504 closely track
those of private operators of places of public accommodation: they
cannot discriminate on the basis of disability in their operations
(which includes a duty to provide reasonable accommodation), and must
make their facilities accessible.[^270] One frequently litigated issue
in this area involves public sports associations' role as
standard-setters for who gets to participate in high school
athletics.[^271]

**Article 31 of the CRPD and Description of Corresponding United States
Law**

*Article 31 -- Statistics and data collection*

> 1\. States Parties undertake to collect appropriate information,
> including statistical and research data, to enable them to formulate
> and implement policies to give effect to the present Convention. The
> process of collecting and maintaining this information shall:
>
> \(a\) Comply with legally established safeguards, including
> legislation on data protection, to ensure confidentiality and respect
> for the privacy of persons with disabilities;
>
> \(b\) Comply with internationally accepted norms to protect human
> rights and fundamental freedoms and ethical principles in the
> collection and use of statistics.
>
> 2\. The information collected in accordance with this article shall be
> disaggregated, as appropriate, and used to help assess the
> implementation of States Parties' obligations under the present
> Convention and to identify and address the barriers faced by persons
> with disabilities in exercising their rights.
>
> 3\. States Parties shall assume responsibility for the dissemination
> of these statistics and ensure their accessibility to persons with
> disabilities and others.

**Coverage of United States Law**

## 

## The United States government collects, maintains, and disseminates statistics and data relating to people with disabilities through a number of federal agencies and programs. The most comprehensive of these studies emanate from the United States Census Bureau, often in collaboration with other agencies such as the Bureau of Labor Statistics, and include the American Community Survey,[^272] Census 2000,[^273] and the Current Population Survey (1981-2004).[^274] Additional data sources from the Federal government include the National Health Interview Survey,[^275] the National Health Interview Survey - Disability Supplement,[^276] and the Survey of Income and Program Participation.[^277]

In addition, the United States government sponsors the collection,
maintenance, and dissemination of statistics and data relating to people
with disabilities through research grants. For example, the United
States Department of Education, [National Institute on Disability and
Rehabilitation
Research](http://www.ed.gov/about/offices/list/osers/nidrr/index.html)
(NIDRR) funds the Cornell University ILR School Employment and
Disability Institute[^278] which in addition to generating national and
international data and policy-based research[^279] and technical
assistance and training,[^280] also maintains an online source for
United States disability statistics,[^281] produces an annual Disability
Status Report,[^282] and compiles the Longitudinal Study of the
Vocational Rehabilitation Services Program.[^283] NIDRR funding also
sustains the University of California, San Francisco Disability
Statistics Center,[^284] co-sponsors with the Coleman Institute for
Cognitive Disabilities a Rehabilitation Engineering Research Center for
the Advancement of Cognitive Technologies,[^285] and enables other
centers that collect disability-related data and conduct academic
research.[^286]

Other United States funded initiatives include the United States Social
Security Administration's support of the Program for Disability Research
(a unit of the Disability Research Institute at the University of
Illinois at Urbana-Champaign and a constituent unit of the School of
Management and Labor Relations at Rutgers, The State University of New
Jersey),[^287] as well as a consortium of agencies, led by the National
Science Foundation, that fund the longitudinal Panel Study of Income
Dynamics,[^288] among others.[^289]

There are myriad regulations that govern the use of human subjects in
research -- which may be applicable to the collection of data and
statistics. Most notably is Title 45 C.F.R. 46.101 which is followed by
the U.S. Department of Health and Human Services, as well as other
federal entities including the National Science Foundation, and the
Departments of Energy, Transportation, and Veteran's Affairs. Although
each agency has its own set of Federal Codes, the DHHS 45 CFR 46
encompasses the United States' government policies on human subjects
protection. The laws apply to any research "... supported or otherwise
subject to regulation by any federal department or agency..."[^290] In
addition, federal regulations require additional protections for
children involved in research.[^291]

Privacy protections relating to the collection, use, and dissemination
of statistics and data are discussed in the contexts of other articles,
for example *supra* Article 22.

The accessibility of these statistics and data sets are discussed in the
contexts of other articles, for example, *supra* Article 9.

**Article 32 of the CRPD and Description of Corresponding United States
Law**

*Article 32 -- International cooperation*

> 1\. States Parties recognize the importance of international
> cooperation and its promotion, in support of national efforts for the
> realization of the purpose and objectives of the present Convention,
> and will undertake appropriate and effective measures in this regard,
> between and among States and, as appropriate, in partnership with
> relevant international and regional organizations and civil society,
> in particular organizations of persons with disabilities. Such
> measures could include, inter alia:
>
> \(a\) Ensuring that international cooperation, including international
> development programmes, is inclusive of and accessible to persons with
> disabilities;\
> (b) Facilitating and supporting capacity-building, including through
> the exchange and sharing of information, experiences, training
> programmes and best practices;\
> (c) Facilitating cooperation in research and access to scientific and
> technical knowledge;\
> (d) Providing, as appropriate, technical and economic assistance,
> including by facilitating access to and sharing of accessible and
> assistive technologies, and through the transfer of technologies.
>
> 2\. The provisions of this article are without prejudice to the
> obligations of each State Party to fulfill its obligations under the
> present Convention.

**Coverage of United States Law**

The United States Department of State provides some amount of technical
assistance to foreign governments on their disability laws and policies,
and also assesses the extent of disability rights and exclusion in
foreign governments as part of its annual human rights reports.[^292]
These Country Reports on Human Rights Practices are in turn submitted
annually to Congress in compliance with sections 116(d) and 502B(b) of
the Foreign Assistance Act of 1961, as amended, and section 504 of the
Trade Act of 1974, as amended.[^293] Although progress has been made in
including a section on disability in these reports, the depth of the
reporting is still lacking.

A recent initiative funded by the United States Agency for International
Development (USAID) seeks to address the integration of disability
issues into the programming of large humanitarian assistance
organizations.[^294] This builds on USAID's incremental efforts to
integrate a disability dimension in its foreign assistance
programming.[^295]

**Articles 33-40 of CRPD and Description of Corresponding United States
Law**

> Articles 33-40 deal with the implementation and monitoring of the
> treaty by states parties. Accordingly, this section will discuss the
> existing schemes of implementation and enforcement for the major
> federal disability laws.

**Coverage of United States Law**

The enforcement of U.S. civil rights law is usually decentralized, with
some balance between private and public enforcement. In private
enforcement schemes, individuals can sue to vindicate their statutory
rights, typically either for damages and/or an injunction. In public
enforcement schemes, some part of the federal government is authorized
to bring suits in the public interest for statutory violations. To
varying extents, the different disability law statues are a blend of
each.

**Americans with Disabilities Act**

Aggrieved individuals are allowed to file suit under Title I of the ADA.
Before they do so, they must file their claim with the Equal Employment
Opportunity Commission (EEOC). The basic rule is that they have 180 days
to do so.[^296] The EEOC finds that "there is reasonable cause to
believe that an unlawful practice has occurred or is occurring,"[^297]
it will attempt to conciliate with the employer. If the EEOC does not
resolve the matter, it will either issue a determination that reasonable
cause exists to believe that an unlawful practice has occurred, or find
that there is not reasonable cause to believe that an unlawful practice
has occurred and issue a "right to sue" letter. The EEOC is authorized
to bring a civil action on the individual's behalf, unless the employer
is a government, governmental agency, or political subdivision, in which
case the EEOC refers the matter to the Attorney General who can initiate
a civil action.[^298] The EEOC, responsible for enforcing Title I
against private employers, has the ability to be bring suit as a
plaintiff, and its claims are not limited to the complaints made by a
charging party.[^299] Within 90 days of receiving a right to sue letter,
an individual may bring a civil action for violation of the statute.

The default remedy under Title I of the ADA for intentional
discrimination is equitable -- enjoining the respondent from continuing
to engage in the unlawful employment action and ordering reinstatement
or hiring, as the case may be. As an adjunct to reinstatement or hiring,
the court may order back pay or other appropriate equitable relief. The
time period for back pay is limited to two years. In the event
reinstatement is not appropriate, the court may order front pay. The
Civil Rights Act, from which the ADA remedial scheme is derived, imposes
monetary limitations on damage awards, depending on the size of the
employer. In addition, an injured party may receive other compensatory
damages, including damages for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other non-pecuniary losses, as well as punitive damages when the
defendant acts with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.

Title II of the ADA and Section 504 of the Rehabilitation Act have
public and private enforcement mechanisms. An individual may sue in
federal court, generally without exhausting any administrative remedies.
In terms of remedies, Title II provides that "\[t\]he remedies,
procedures, and rights set forth in section 505 of the Rehabilitation
Act of 1973 shall be the remedies, procedures, and rights that this
title provides to any person alleging discrimination on the basis of
disability in violation of section 202."[^300] Section 505, however,
does not contain any remedies provisions. As a result of this ambiguity,
courts have had to develop case law about the specific remedies
available to private individuals in Title II cases. Although the case
law is not crystal clear, several principles have emerged. First,
individuals may receive injunctive relief for Title II violations. The
only possible exception to this rule is in suits against states, which
may trigger sovereign immunity federalism issues limiting the
availability of certain types of injunctive relief. At a minimum, an
individual or the federal government may receive prospective injunctive
relief under the doctrine of *Ex Parte Young*.

Another general rule is that plaintiffs may recover compensatory damages
in Title II cases. This includes damages for emotional distress, pain
and suffering, and economic loss. This general rule is subject to two
important qualifications. First, after *Tennessee v. Lane*,[^301] an
individual\'s ability to recover damages from a violating state employer
depends on whether or not that individual is suing to vindicate a
"fundamental right." If the right is "fundamental," Title II of the ADA
is viewed as a valid waiver of the states\' sovereign immunity, and
damages are allowed. the right is not "fundamental," courts are split on
whether Title II validly abrogates state sovereign immunity and,
therefore, allows for damages. The second qualification to a
plaintiff\'s ability to recover compensatory damages depends on whether
the discrimination complained of is the result of the disparate impact
of facially neutral actions or discriminatory intent. Although there is
not complete uniformity, a consensus among courts has developed that a
plaintiff seeking compensatory damages must show that the defendant has
intentionally discriminated, as opposed to engaging in a practice that
has a discriminatory effect. In order to recover damages, the plaintiff
must show that the defendant acted with at least "deliberate
indifference."[^302] The entity must know that an accommodation is
required and must fail to make the accommodation in a way that bespeaks
more than negligence and has an element of deliberateness, by, for
example, failing to consider an individual\'s needs. In *Barnes v.
Gorman*,[^303] the Supreme Court held that punitive damages are not
available in Title II cases.

Under Title II, private individuals may also pursue administrative
remedies, which may ultimately lead to DOJ involvement. Within 180 days
of the violation, an individual must file a complaint with any
appropriate agency or the DOJ.[^304] Subpart G of the DOJ Title II
regulations designates different agencies that exercise
responsibilities, regulate, or administer services, programs, or
activities in specified areas.[^305] These agencies are the Departments
of Agriculture, Education, Health and Human Services, Housing and Urban
Development, Interior, Justice, Labor, and Transportation. All
designated agencies (including the DOJ) must investigate a complaint and
attempt informal resolution. If this fails, the agency issues findings
of fact and conclusions of law, a description of the appropriate remedy,
and a notice to the complainant and public entity. If it finds
noncompliance, it issues a letter of noncompliance, notifies the
Assistant Attorney General in charge of the Civil Rights Division of the
DOJ, and attempts to negotiate to secure compliance. If that fails, the
matter is referred to the Assistant Attorney General for litigation.

Title III is also enforceable by private parties. Title III, however,
does not provide a damage remedy for private litigants. The relevant
provision states that the "remedies and procedures set forth in section
204(a) of the Civil Rights Act of 1964 are the remedies and procedures
this title provides to any person who is being subjected to
discrimination on the basis of disability in violation of this
title."[^306] The referenced remedies in the Civil Rights Act of 1964
only include prospective injunctive relief.

Title III gives the DOJ broader powers than individual litigants. The
DOJ can investigate complaints, and it may commence a civil action if it
believes that any person or group of persons is engaged in a pattern or
practice of discrimination, or any person or group of persons has been
discriminated against and such discrimination raises an issue of general
public importance.[^307] The DOJ is also authorized to obtain
compensatory damages in addition to the equitable relief available when
individuals sue on their own behalf.[^308] In cases the DOJ deems
important to "vindicate the public interest," it may also seek civil
penalties (not to exceed \$50,000 for the first violation and \$100,000
for subsequent violations).[^309] The DOJ can choose to litigate cases,
obtain consent decrees, or settle.

**Individuals with Disabilities Education Act**

The IDEA is a federal funding statute, meaning federal funding is
conditioned on compliance and funding can be revoked by the federal
government if noncompliance is found. However, students with
disabilities also have a private right of action to enforce the IDEA
through the special education process. Parents who successfully
challenge inadequate IEPs may be entitled to declaratory and injunctive
relief directing the state to provide FAPE. They may also be entitled to
reimbursement for their out-of-pocket expenses, including private school
tuition.[^310] A student may also be entitled to compensatory
educational services to remedy past failures to provide FAPE.[^311]

The IDEA does not specify what relief is available, and the circuits
have split on the issue of whether tort-like compensatory damages are
available under the IDEA or under 42 U.S.C. § 1983 to enforce IDEA
rights. The Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh
circuits have found damages unavailable.[^312] However, some circuits
have found damages to be available under 42 U.S.C. § 1983 for violations
of the IDEA.[^313]

Sovereign immunity limits the availability of damages from state
governments, and punitive damages are generally not available against
government agencies. *See* Barnes v. Gorman, 536 U.S. 181, 189 (2002).

Parents who prevail in an IDEA administrative or judicial proceeding are
entitled to reasonable attorneys' fees, in the court's discretion.[^314]
No multiplier of fees is permitted.[^315] Fees may not be awarded for
attorney participation in IEP Team meetings.[^316] The Supreme Court has
also recently held that parents cannot recover non-attorney expert fees
in IDEA cases.[^317]

**Help America Vote Act**

The Help America Vote Act provides that that voting systems shall "be
accessible for individuals with disabilities, including nonvisual
accessibility for the blind and visually impaired, in a manner that
provides the same opportunity for access and participation (including
privacy and independence) as for other voters."[^318] There is no
express private right of action for this provision in HAVA. The only
grievance option available to private citizens is an administrative
proceeding. The DOJ has taken the position that individuals do not have
a private right of action to enforce this part of HAVA.[^319] The DOJ
does have the ability under HAVA to bring "civil actions against any
State or jurisdiction in an appropriate United States District Court for
such declaratory and injunctive relief as may be necessary."[^320]

**Civil Rights of Institutionalized Persons Act**

The Civil Rights of Institutionalized Persons Act (CRIPA)[^321]
authorizes the U.S. Attorney General to investigate conditions of
confinement at State and local government institutions such as prisons,
jails, pretrial detention centers, juvenile correctional facilities,
publicly operated nursing homes, and institutions for people with
psychiatric or developmental disabilities. Its purpose is to allow the
Attorney General to uncover and correct widespread deficiencies that
seriously jeopardize the health and safety of residents of institutions.
The Attorney General may initiate civil law suits where there is
reasonable cause to believe that conditions are \"egregious or
flagrant,\" that they are subjecting residents to \"grievous harm,\" and
that they are part of a \"pattern or practice\" of resistance to
residents\' full enjoyment of constitutional or Federal rights,
including title II of the ADA and section 504 of the Rehabilitation Act.

**Fair Housing Amendments Act**

The FHAA can be enforced in several ways. First, an aggrieved individual
can bring a direct complaint in federal district or state court.[^322]
There is no requirement that a plaintiff exhaust her administrative
remedies prior to filing suit. The statue of limitations is two years.
Courts are authorized to appoint attorneys for persons alleging
discriminatory housing practices (or persons against whom such a
practice is alleged), or allow them to file a civil action without
paying fees or costs, if, in the opinion of the court, such person is
financially unable to bear the costs of such action.[^323] Courts are
also authorized to award actual and punitive damages, and grant other
relief as the court deems appropriate, including temporary inunctions,
temporary restraining orders, or permanent orders.[^324] It is worth
noting that this is quite different from ADA Title III's remedial
scheme, which makes no provision for compensatory or punitive damages.
Under the FHA, it is within the court's discretion to award attorneys'
fees to a prevailing plaintiff (except for the United States). The
Attorney General may intervene in a private action.[^325]

The FHAA also contemplates an administrative remedy scheme, through a
complaint to HUD.[^326] These actions have the advantage of expedited
discovery and hearings, and actual damages and civil penalties up to
\$50,000 can be awarded, and attorneys' fees.[^327] Finally, the
Attorney General may bring action in cases where there appears to be a
pattern or practice of resistance to compliance with the Act.[^328]

**The National Council on Disability wishes to express its appreciation
to Professor Michael Stein, Executive Director of the Harvard Project on
Disability, and Associate Professor Michael Waterstone, Loyola Law
School Los Angeles, who co-authored this paper.**

**Endnotes**

[^1]: *See* National Council on Disability, *The Americans with
    Disabilities Act Policy Brief Series:*

    *Righting the ADA, No. 6: Defining \"Disability\" in a Civil Rights
    Context: The Courts\' Focus on Extent of Limitations as Opposed to
    Fair Treatment and Equal Opportunity* (Feb. 2003), available at
    \<<http://www.ncd.gov/newsroom/publications/2003/extentoflimitations.html>\>.

[^2]: *See* National Council on Disability, *Implementation of the ADA :
    Challenges, Best Practices, and New Opportunities for Success* (July
    2007), available at
    \<<http://www.ncd.gov/newsroom/publications/2007/implementation_07-26-07.html>\>.

[^3]: *See infra* discussion of Article 27 (employment).

[^4]: For a clearly articulated explanation on US policy in respect of
    the ratification of human rights conventions, *see* THOMAS
    BUERGENTHAL, DINAH SHELTON, & DAVID STEWART, INTERNATIONAL HUMAN
    RIGHTS 359-377 (2002).

[^5]: See David Stewart, *U.S. Ratification of the Covenant on Civil and
    Political Rights: The Significance of the Reservations,
    Understandings and Declarations*, 14 HUM. RTS. L. J. 77 (1993).

[^6]: The same holds true for the European Union's employment
    discrimination directive. *See* Council of Europe Directive
    Establishing a Framework for Equal Treatment in Employment and
    Occupation, 200/78/EC (27 November, 2000).

[^7]: *See* Preamble paragraph (e) ("*Recognizing* that disability is an
    evolving concept and that disability results from the interaction
    between persons with impairments and attitudinal and environmental
    barriers that hinders their full and effective participation in
    society on an equal basis with others") (emphasis in original); art.
    1 (conceiving that disability results from "interaction with various
    barriers" that hinder "full and effective participation in society
    on an equal basis with others.").

[^8]: *See* Janet E. Lord & Michael Ashley Stein, *The Committee on the
    Rights of Persons with Disabilities, in* [THE UNITED NATIONS AND
    HUMAN RIGHTS: A CRITICAL APPRAISAL \_\_\_\_]{.smallcaps} (Philip
    Alston & Frédéric Mégret eds., 2008).

[^9]: *See* Cary LaCheen, *Achy Breaky Pelvis, Lumber Lung and Juggler's
    Despair: The Portrayal of the Americans with Disabilities Act on
    Television and Radio*, 21 [BERKELEY J. EMP. & LAB. L.]{.smallcaps}
    223 (2000); see also National Council on Disability, *The Americans
    with Disabilities Act Policy Brief Series: Righting the ADA -- No.
    5: Negative Media Portrayals of the ADA* (February, 2003).

[^10]: *See, e.g.,* Karen Nutter, *Domestic Violence in the Lives of
    Women with Disabilities: No (Accessible) Shelter from the Storm*, 13
    S. CAL. L. & WOMEN'S STUD. 329 (2004); Melissa Cole, *Beyond Sex
    Discrimination: Why Employers Discriminate When Their Employee
    Health Plans Exclude Contraceptives From Prescription Coverage*, 43
    ARIZ. L. REV. 501 (2001).

[^11]: G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 161,
    U.N. Doc. A/44/49 (1989).

[^12]: *See* Ruth Colker, *ADA Title III: A Fragile Compromise,* 21
    BERKELEY J. EMP. & LAB. L. 377 (2000) (suggesting that Title III's
    broad coverage was a trade-off for weak enforcement mechanisms);
    *see also* Michael Waterstone, *The Untold Story of the Rest of the
    Americans with Disabilities Act*, 58 VAND. L. REV. 1807, 1853--74
    (2005) (on underenforcement of Title III of ADA); Samuel R.
    Bagenstos, *The Perversity of Limited Civil Rights Remedies: The
    Case of "Abusive" ADA Litigation*, 54 U.C.L.A. L. REV. 1 (2006)
    (same).

[^13]: A thorough evaluation is set forth in the National Council on
    Disability's April 2005 report, *Saving Lives: Including People with
    Disabilities in Emergency Planning, available online at*
    \<<http://www.ncd.gov/newsroom/publications/2005/saving_lives.htm>\>.

[^14]: U.S. Dep't of Homeland Security, *National Response Plan* iii
    (2004), *available at*
    \<[http://www.dhs.gov/xlibrary/assets/NRPbaseplan.pdf]{.underline}\>.

[^15]: Exec. Order No. 13,347, 69 Fed. Reg. 44,573 (July 22, 2004).

[^16]: U.S. Dep't of Homeland Security Office for Civil Rights and Civil
    Liberties, *Individuals with Disabilities in Emergency Preparedness*
    (2005), *available online at*
    \<<http://www.dhs.gov/xlibrary/assets/CRCL_IWDEP_AnnualReport_2005.pdf>\>.

[^17]: *See* Janet E. Lord, Michael E. Waterstone, & Michael Ashley
    Stein, *Natural Disasters and People with Disabilities, in* Post
    Disaster\
    Recovery and Redevelopment: Hurricane Katrina and Beyond \_\_\_
    (Robin Paul Malloy ed. 2007).

[^18]: S. 2124, 109th Cong. § 1 (2005); H.R. 4704, 109th Cong. § 2
    (2006).

[^19]: *See, e.g.,* National Council on Disability to Discuss Emergency
    Preparedness for People with Disabilities at Boston Meeting (NCD
    News Advisory #07-547; November 20, 2007), *available online at*
    \<<http://www.ncd.gov/newsroom/news/2007/a07-547.htm>\>.

[^20]: See Anita Silvers & Michael Ashley Stein, *Disability, Equal
    Protection, and the Supreme Court: Standing at the Crossroads of
    Progressive and Retrogressive Logic in Constitutional
    Classification*, 35 U. Mich. J. L. Reform 81 (2002).

[^21]: 535 U.S. 356, 376 (2001).

[^22]: 274 U.S. 200 (1927).

[^23]: *Id.* at 206-07. *See also* Anita Silvers & Michael Ashley Stein,
    *Disability and the Social Contract*, 74 U. Chi. L. Rev. \_\_\_
    (2007).

[^24]: *See* Americans with Disabilities Act Information for Law
    Enforcement, promulgated by the Department of Justice, *available
    online at* \<<http://www.usdoj.gov/crt/ada/policeinfo.html>\>.

[^25]: *See* Waterstone, *Untold Story, supra* note Error: Reference
    source not found, at 1857-58 (showing results of California, Texas,
    New York, Missouri, and Florida studies demonstrating substantial
    courthouse inaccessibility).

[^26]: 546 U.S. 151 (2006).

[^27]: *See, e.g.*,Olmstead v. Zimring, 527 U.S. 581, 597, 603-04
    (1999).

[^28]: 274 U.S. 200 (1927).

[^29]: 457 U.S. 307 (1982).

[^30]: *Id.*

[^31]: 42 U.S.C. §1997 *et seq*.

[^32]: *Id.* Additional information is posted on the U.S. Department of
    Justice Civil Rights Division Special Litigation Section website,
    *available online at* \<<http://www.usdoj.gov/crt/split/>\>. A
    detailed history of deinstitutionalization can be found at
    \<[http://www.mdri.com](http://www.mdri.com/).\>

[^33]: *See generally* MARK WEBER, DISABILITY HARASSMENT (2007).

[^34]: *See* Amy L. Fairchild & Eilen A. Tynan, *Policies of
    Containment: Immigration in the Era of AIDS*, 84 Am. J. Pub. Health
    2011 (1994).

[^35]: See Mark C. Weber, *Opening the Golden Door: Disability and the
    Law of Immigration*, 8 J. Gender R.& Jus.162 (2004).

[^36]: *See generally*, MICHAEL L. PERLIN, ET. AL., INTERNATIONAL HUMAN
    RIGHTS AND COMPARATIVE MENTAL DISABILITY LAW: CASES & MATERIALS
    (2006). Practical examples of this type of advocacy are set forth on
    the website of Mental Disability Rights Advocates, *available online
    at*: \<[http://www.mdri.org](http://www.mdri.org/)\>.

[^37]: *See* Silvers & Stein, *Disability and the Social Contract*,
    *supra* note Error: Reference source not found.

[^38]: Consider, for example, the competing claims facing the court in
    *Townsend v Quasim*, 328 F3d 511, 520 (9th Cir 2003):

    > Plaintiffs have asserted that it is cheaper on a per capita basis
    > to provide long-term care services to individuals in a
    > community-based setting rather than a nursing home. . . . At the
    > same time, even if extension of community-based long term care
    > services to the medically needy were to generate greater expenses
    > for the state's Medicaid program, it is unclear whether these
    > extra costs would, in fact, compel cutbacks in services to other
    > Medicaid recipients.

[^39]: *Olmstead*, 527 US at 597 ("In evaluating a State's
    fundamental-alteration defense, the District Court must
    consider . . . not only the cost of providing community-based care
    to the litigants, but also the range of services the State provides
    others with mental disabilities."). *See also* Frederick L. v
    Department of Public Welfare of Pennsylvania, 364 F3d 487, 494--95
    (3d Cir 2004) (considering budget constraints and other factors).

[^40]: Ironically, several commentators make the point that this type of
    social interaction is key to an understanding of the ADA's
    definition of major life activity, as well as to effectuating its
    goals of social inclusion. *See, e.g.,* Ann Hubbard, *The Major Life
    Activity of Belonging*, 39 Wake Forest L.Rev.215 (2004); Ann
    Hubbard, *Meaningful Lives and Major Life Activities*, 55
    Ala.L.Rev.997 (2004).

[^41]: *See, e.g.,* Susan Kerr, *The Application of the Americans with
    Disabilities Act to the Termination of the Parental Rights of
    Individuals with Mental Disabilities*, 16 J. CONTEMP. HEALTH L. &
    POL'Y 387 (2000); *see also* In Bednarski v. Bednarski, 366 N.W.2d
    69, 73 (Mich. Ct. App. 1985), (reversing the trial court's
    termination a deaf woman's custody of her "\[t\]wo normal children,"
    citing her deafness); Clark v. Madden, 725 N.E.2d 100, 103 (Ind. Ct.
    App. 2000) (reversing trial court's ordering a blind father -- a
    successful CEO of a computer company --to be accompanied at all
    times by a "responsible adult" while caring for his daughter, simply
    because of his disability); In re Marriage of R.R., 575 S.W.2d 766,
    768 (Mo. Ct. App. 1978) (reversing order of trial judge awarding
    custody to "immoral" and "dishonest" mother because of
    unsubstantiated fear that the children would be "emotionally damaged
    because of \[the father's\] handicap," multiple sclerosis).

[^42]: *See, e.g.,* In re C.M., 556 P.2d 514, 515 (Wyo. 1976) (relying
    on testimony and conclusions of witness who think that people with
    intellectual disabilities should not act as parents). The Supreme
    Court recently declined to grant *certiorari* on the issue of
    whether parental termination proceedings are covered by Title II of
    the ADA. *See* Irving N. v. Rhode Island Department of Children,
    Youth, and Families, 127 S.Ct. 1372 (2007).

[^43]: *See* Daniel H. Melvin II, *The Desegregation of Children with
    Disabilities*, 44 DePaul L. Rev. 599, 603 (1995) ("The history of
    educating children with disabilities in the United States is a tale
    of neglect and exclusion.").

[^44]: 458 U.S. 176 (1982).

[^45]: *See* Samuel R. Bagenstos, *The Future of Disability Law*, 114
    YALE L. J. 1 (2005).

[^46]: *Id.* at 26.

[^47]: *Id.* at 28-29.

[^48]: *See* General Accountancy Office, *Private Health Insurance:
    Millions Relying on Individual Market Face Cost and Coverage Trade
    Offs* 43 (1996) (listing, among others, asthma, cleft palate, and
    glaucoma).

[^49]: *See* National Council on Disability, *Making Health Care Reform
    Work for Americans with Disabilities: Summary Information on Five
    "Town Meetings" on Health Care Reform* 9 (1994).

[^50]: *Id.* at 29-31.

[^51]: 42 U.S.C. § 423(d)(2)(A).

[^52]: § 42 U.S.C. § 426(b)

[^53]: *See* Bagenstos, *The Future of Disability Law, supra* note
    Error: Reference source not found, at 33-34.

[^54]: Exec. Order No. 13,217, 66 F.R. 33155 (June 18, 2001)
    ("Community-Based Alternatives for Individuals with Disabilities").

[^55]: *See* Olmstead, 527 U.S. at 603-04.

[^56]: Gerard Quinn, The UN Convention on the Human Rights of Persons
    with Disabilities 16 (June 10, 2007), *available at*
    \<[www.nhri.net/2007/Berlin-Quinn2.pdf]{.underline}\>.

[^57]: 527 U.S. 471 (1999).

[^58]: *See* Albertson\'s, Inc. v. Kirkingburg, 527 U.S. 555, 565-66
    (1999) (holding that plaintiff may not be protected under the ADA,
    despite having vision in only one eye, because his brain has
    developed subconscious adjustments to compensate for reduced depth
    perception); Murphy v. United Parcel Service, Inc., 527 U.S. 516,
    518-19 (1999) (holding that the plaintiff was not protected under
    the ADA because, when medicated, his high blood pressure did not
    prevent him from functioning normally).

[^59]: 534 U.S. 184 (2002)

[^60]: S*ee Sutton*, 527 U.S. at 491.

[^61]: Early on, the Equal Employment Opportunity Commission ("EEOC"),
    the administrative agency tasked with promulgating regulations under
    Title I of the ADA, took an expansive view of how the "regarded as"
    part of the definition should be interpreted: "if an individual can
    show that an employer or other covered entity made an employment
    decision because of a perception of disability based on 'myth, fear
    or stereotype,' the individual will satisfy the 'regarded as' part
    of the definition of disability. If the employer cannot articulate a
    non-discriminatory reason for the employment action, an inference
    that the employer is acting on the basis of 'myth, fear, or
    stereotype' can be drawn." 29 C.F.R. pt. 1630, app., § 1630.2(1)
    (2004).

[^62]: *See generally* Bagenstos, *The Future of Disability Law, supra*
    note Error: Reference source not found

[^63]: *See* Ruth Colker, *Winning and Losing Under the ADA*, 62 OHIO
    ST. L. J. 240 (2001).

[^64]: *See* Amy L. Allbricht, *ABA Special Feature: 2003 Employment
    Decisions Under the ADA Title I -- Survey Update*, 28 MENTAL &
    PHYSICAL L. REP. 319 (2003).

[^65]: *See* Louis S. Rulli & Jason A. Leckerman, *Unfinished Business:
    The Fading Promise of ADA Enforcement in Federal Courts Under Title
    I and its Impact Upon the Poor*, 8 J. GENDER, RACE, & JUST. 595
    (2005).

[^66]: *See* Samuel R. Bagenstos, *The Americans with Disabilities Act
    as Welfare Reform*, 44 Wm. & Mary L. Rev. 921 (2003) (disability
    rights advocates sold the ADA to Congress in large measure as a
    means of increasing employment and thus decreasing public benefit
    dependence).

[^67]: Information on the Ticket to Work and Work Incentives Improvement
    Act and the Workforce Investment Act, is *available online at*
    \<<http://disability.law.uiowa.edu/index.htm>\>.

[^68]: For example, the Cornell University Rehabilitation and Research
    Training Center on Disability Demographics and Statistics 2005
    Disability Status Reports indicates that the 2005 employment rate
    among working age people with disabilities was 38%. *Available
    online at*
    \<<http://www.ilr.cornell.edu/ped/disabilitystatistics/StatusReports/2005-pdf/2005-StatusReports_US.pdf?CFID=13754524&CFTOKEN=34477900>\>.

[^69]: *See* U.S. Gen. Accounting Office, *Report to Congressional
    Requesters, Voters with Disabilities\--Access to Polling Places and
    Alternative Voting Methods* (Oct. 2001), available at
    \<[http://]{.underline}
    [www.gao.gov/new.items/d02107.pdf](http://www.gao.gov/new.items/d02107.pdf)\>.

[^70]: *See* 2000 Nat\'l Org. on Disability/Harris Survey of Americans
    with Disabilities 83 (2000).

[^71]: The Department has participated in several line-of-sight movie
    theater cases, as discussed above; has made the accessibility of
    public gathering places an important part of its Project Civic
    Access settlements, *see* \<<http://www.ada.gov/civicac.html>\>; and
    has taken an active role in the accessibility of sports stadiums.
    *See* Disability Rights Online News, *available at*
    \<<http://www.ada.gov/newsltr1007.html>\> (highlighting DOJ role in
    accessibility features of new Washington Nationals baseball
    stadium). The DOJ has also recently sought to intervene in *Michigan
    Paralyzed Veterans of America v. University of Michigan*, a lawsuit
    filed in the Eastern District of Michigan challenging the
    accessibility of the University of Michigan football stadium for
    individuals with mobility disabilities.

[^72]: One such organization is *Sport in Society*, operated out of
    Northeastern University. *See*
    http://www.sportinsociety.org/vpd/dis.php.

[^73]: *See* National Council on Disability, *Foreign Policy and
    Disability: Legislative Strategies and Civil Rights Protections to
    Ensure Inclusion of People with Disabilities* 21-22 (September,
    2003), *available online at*
    \<<http://www.ncd.gov/newsroom/publications/2003/foreign03.htm>\>.

[^74]: *Id.*.

[^75]: 532 U.S. 598 (2001).

[^76]: *See* Catherine R. Albiston & Laura Beth Nielsen, *The Procedural
    Attack on Civil Rights: The Empirical Reality of Buckhannon for the
    Private Attorney General*, 54 UCLA L. REV. 1047 (2007) (arguing that
    Court decisions have negative effects for private organizations that
    bring civil rights cases); *see also* Samuel R. Bagenstos, *The
    Perversity of Limited Civil Rights Remedies: The Case of "Abusive"
    ADA Litigation*, 54 UCLA L. REV. 1 (2006) (critiquing private
    enforcement of Title III of the Americans with Disabilities Act).

[^77]: *See* Waterstone, *supra* note Error: Reference source not found
    (arguing that Titles II and III of the ADA are underenforced, in
    large part because of tepid public enforcement); *see also* National
    Council on Disability*, Promises to Keep: A Decade of Federal
    Enforcement of the Americans with Disabilities Act* 3 (July, 2000)
    ("Federal agencies charged with enforcement and policy development
    under the ADA, to varying degrees, have been overly cautious,
    reactive, and lacking any coherent and unifying national
    strategy."), *available at*
    \<[http://www.ncd.gov/newsroom/publications/2000/promises_1.htm]{.underline}
    \>.

[^78]: *See* Michael Stein and Michael Waterstone, *Disability,
    Disparate Impact, and Class Actions*, 56 DUKE L. J. 761 (2006).

[^79]: *See* United States v. Hazelwood School Dist., 534 F.2d 805,
    812--13 (8th Cir. 1976) (ordering an employer to change employment
    policies), rev'd on other grounds, 433 U.S. 299 (1977); United
    States v. Bethlehem Steel, 446 F.2d 652 (2nd Cir. 1971) (ordering an
    employer to desegregate job assignments); EEOC v. International
    Union of Elevator Constructors Local 5, 398 F.Supp. 1237, 1264--65
    (ordering an employer to develop training programs for minority
    employees) (E.D. Pa. 1975).

[^80]: The DOJ was a plaintiff in four cases that all made it to the
    Court of Appeals level, and established early precedent that neutral
    practices with a disparate impact violated Title VII. *See* Local
    53, Int'l Ass'n Heat and Frost Insulators v. Vogler, 407 F.2d 1047
    (5th Cir. 1969); Local 180 United Papermakers v. United States, 416
    F.2d 980 (5th Cir. 1969); United States v. Hayes Int'l Corp, 415
    F.3d 1038 (5th Cir. 1969); United States v. Sheet Metal Workers
    International Association, Local Union No. 36, AFL-CIO, 416 F.2d 123
    (8th Cir. 1969). This line of cases was a key part of the road to
    the Supreme Court's decision in *Griggs v. Duke Power Co*, 399 U.S.
    296 (1970) holding that facially neutral practices, procedures, or
    tests that are discriminatory in effect cannot be used to preserve
    the 'status quo' of employment discrimination.

[^81]: *See* United States of America v. State of Maine, Civil Action
    No. 06-86-B-W (D. Maine); *see also* United States of America v. New
    York State Board of Elections, Case Number 06-CV-0263 (N.D.N.Y.).

[^82]: *See* Election Protection Hotline Election Incident Reporting
    System, available at
    \<[http://eirs.cs.net.8080/EIRS_WEB/User/logout.do]{.underline}\>
    (110 disability-related calls).

[^83]: *See* Robert G. Schwemm*, Barriers to Accessible Housing:
    Enforcement Issues in 'Design and Construction' Cases Under the Fair
    Housing Act,* 40 U. RICH. L. REV. 753, 768--74 (2006).

[^84]: *See* 42 U.S.C. § 12164 (Title II); *see also* 42 U.S.C. §
    12186(a) (Title III).

[^85]: *See* 28 C.F.R. § 35.190(b).

[^86]: *See* 34 C.F.R. Part 104.

[^87]: *See* 28 C.F.R. § 35.190(b).

[^88]: *See* 28 C.F.R. § 35.190(b).

[^89]: *See* 28 C.F.R. § 35.190(b).

[^90]: *See* 28 C.F.R. § 35.190(b).

[^91]: *See* 28 C.F.R. § 35.190(b).

[^92]: *See* CRPD, at art. 4(3). Article 4(3) of the Convention makes
    consultations with disabled persons and their representative
    organizations a general obligation and is reinforced by the
    inclusion of participation as a general principle of the Convention
    in Article 3. NGO participation is implicitly provided for in the
    monitoring process, insofar as the Convention requires States
    Parties to include civil society in the monitoring process at the
    national level. *Id* at art. 33(3). Moreover, Article 34(3) calls on
    States Parties to consider consultations with NGOs in the
    formulation of Committee member nominations as well as in the
    preparation of reports (Article 35(4)).

[^93]: *Id.* at art. 38(a) (mandating that UN specialized agencies and
    other UN organs "shall be entitled to be represented" during the
    course of considering implementation of Convention provisions
    "within the scope of their mandate."); s*ee also id.*(allowing the
    Committee on the Rights of Persons with Disabilities to "invite
    specialized agencies and other United Nations organs to submit
    reports on the implementation of the Convention in areas falling
    within the scope of their activities.").

[^94]: *See* Optional Protocol, at art. 6 (providing for a procedure of
    inquiry to allow the Committee to initiate an inquiry on receipt by
    the Committee of "reliable information indicating grave or
    systematic violations by a State Party of rights set forth in the
    Convention.").

[^95]: *See* CRPD, at art. 40 (providing that "States Parties shall meet
    regularly in a Conference of States Parties in order to consider any
    matter with regard to the implementation of the present
    Convention.")

[^96]: Often referred to as "second generation rights," these focus
    largely on standards of living such as the availability of housing
    and education. *See, e.g*., HENRY J. STEINER & PHILIP ALSTON,
    INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 237-67
    (2d ed. 2000).

[^97]: 42 U.S.C. § 4151-4157

[^98]: 29 U.S.C. § 791 *et. seq.*

[^99]: 20 U.S.C. § 1400 *et. seq.*

[^100]: 42 U.S.C. § 1973aa-6

[^101]: 42 U.S.C. §§ 1973ee *et seq*.

[^102]: 42 U.S.C.A. § 15301 *et. seq*.

[^103]: 49 U.S.C. § 41705

[^104]: 42 U.S.C. § 3604(f).

[^105]: 42 U.S.C. § 12101 *et. seq.*

[^106]: 42 U.S.C. § 12181(a).

[^107]: *Id.* at (b).

[^108]: 42 U.S.C. § 12102(1)

[^109]: The ADA regulations, define auxiliary aides and services as
    including "\[q\]ualified interpreters, notetakers, transcription
    services, written materials, telephone handset amplifiers, assistive
    listening devices, assistive listening systems, telephones
    compatible with hearing aids, closed caption decoders, open and
    closed captioning, telecommunications devices for deaf persons
    (TDD\'s), videotext displays, or other effective methods of making
    aurally delivered materials available to individuals with hearing
    impairments; qualified readers, taped texts, audio recordings,
    Brailled materials, large print materials, or other effective
    methods of making visually delivered materials available to
    individuals with visual impairments; acquisition or modification of
    equipment or devices; and other similar services and actions. 28
    C.F.R. § 35.104(a).

[^110]: 42 U.S.C. § 12112(a) (emphasis added). There are additional
    statutory provisions spelling out what constitutes discrimination in
    additional detail. *See* 42 U.S.C. § 12112(b).

[^111]: 42 U.S.C. § 12111(8).

[^112]: 42 U.S.C. § 12132.

[^113]: 42 U.S.C. § 12182(a). Title III also contains additional
    statutory provisions providing more detail to this general
    prohibition. *See* 42 U.S.C. § 12182(b).

[^114]: 42 U.S.C. § 12111.

[^115]: 480 U.S. 273 (1987).

[^116]: *Id*. at 287, n.17.

[^117]: 480 U.S. 273 (1987).

[^118]: *See* 28 C.F.R. § 35.130(b)(7).

[^119]: 42 U.S.C. § 12182(b)(2)(a)(ii).

[^120]: 42 U.S.C. § 12102(2).

[^121]: *See, e.g.,* National Council on Disability, *Righting the ADA*
    (Dec., 2004).

[^122]: U.S. Const., XIV Amendment, Sec. 2.

[^123]: *See* City of Cleburne, Texas v. Cleburne Living Center, 473
    U.S. 432 (1985).

[^124]: In fact, Section 501 of the Rehabilitation Act, 29 U.S.C. § 791,
    expressly requires affirmative action plans by Executive Branch
    agencies.

[^125]: U.S. Const., XIV Am., Sec.5.

[^126]: 42 U.S.C. § 2000e-2.

[^127]: 42 U.S.C. § 2000e-2(e).

[^128]: Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

[^129]: 20 U.S.C. §§ 1681-83, 1685, 1686.

[^130]: *See* Troxel v. Granville, 530 U.S. 57, 84 n.5 (2000) (Stevens,
    J, dissenting).

[^131]: *See, e.g.* Washington v. Indiana High School Athletic
    Association, 181 F.3d 840, 852 (7th Cir. 1999) (high school athletic
    association must accommodate school age child in sporting
    activities); Dennin v. Connecticut Interscholastic Athletic Assc.,
    913 F.Supp.663 (D. Conn. 1996) (same).

[^132]: *See* Board of Education v. Rowley, 458 U.S. 176 (1982).

[^133]: *See* Yeskey v. Pa. Dep't of Corr*.*, 118 F.3d 168, 171 (3^rd^
    Cir. 1997) (noting that Title II's language brings within its scope
    "anything a public entity does."); *see also* Barden v. City of
    Sacramento, 292 F.3d 1073 (9^th^ Cir. 2002) (holding that sidewalks
    were covered by Title II); Rodde v. Bonta, 357 F.3d 988 (9^th^ Cir.
    2004) (public hospitals covered by Title II); Parker v. Universidad
    de Puerto Rico, 225 F.3d 1 (2000) (public university covered by
    Title II).

[^134]: The relevant regulations define facilities as "all or any
    portion of buildings, structures, sites, complexes, equipment,
    rolling stock or other conveyances, roads, walks, passageways,
    parking lots, or other real or personal property, including the site
    where the building, property, structure, or equipment is located."
    28 C.F.R. § 35.104.

[^135]: 28 C.F.R. § 35.151(a), (b).

[^136]: 42 U.S.C. § 12142.

[^137]: *Id.* at 12143(a).

[^138]: *Id.* at 12162.

[^139]: *See* Martin v. Metropolitan Atlanta Rapid Transit Authority,
    225 F.Supp. 1362, 1377 (N.D. Ga 2002) (holding that a transit
    authority's website providing scheduling information for bus and
    other transit services must be accessible under Title II).

[^140]: 42 U.S.C. § 12181 *et. seq.*

[^141]: *See* Martin v. PGA Tour, 532 U.S. 661 (2001) (holding that the
    PGA Golf Tour must modify its "walking-only" rule to accommodate a
    golfer with a disability who needed to use a golf cart).

[^142]: 42 U.S.C. § 12188; *see also* Aikens v. St Helena Hospital, 843
    F.Supp. 1329 (N.D. Cal. 1994) (holding that hospital might have to
    provide sign language interpreters, although this plaintiff's claim
    was dismissed for lack of standing). In the regulations, auxiliary
    aids and services are defined to include "qualified interpreters,
    note-takers, computer aided transcription services, written
    materials, telephone handset amplifiers, assistive listening
    devices, assistive listening systems, telephones compatible with
    hearing aids, closed caption decoders, open and closed captioning,
    telecommunications devices for deaf persons (TDDs), videotext
    displays . . . qualified readers, taped texts, audio recordings,
    Brailled materials, \[and\] large print materials." 28 C.F.R. §
    36.303(b).

[^143]: 42 U.S.C. § 12182(b)(2)(A)(iv); *id.* at 12181(9). The
    regulations list examples steps to remove barriers as "installing
    ramps; making curb cuts in sidewalks and entrances; repositioning
    shelves; rearranging tables, chairs, vending machines, display
    racks, and other furniture; repositioning telephones; adding raised
    markings on elevator control buttons; installing flashing alarm
    lights; widening doors; installing offset hinges to widen doorways;
    eliminating a turnstile or providing an alternative accessible path;
    installing accessible door hardware; installing grab bars in toilet
    stalls; rearranging toilet partitions to increase maneuvering space;
    insulating lavatory pipes under sinks to prevent burns; installing a
    raised toilet seat; installing a full-length bathroom mirror;
    repositioning the paper towel dispenser in a bathroom; creating
    designated accessible parking spaces; installing an accessible paper
    cup dispenser at an existing inaccessible water fountain; removing
    high pile, low density carpeting; or installing vehicle hand
    controls." 28 C.F.R. § 36.304(b).

[^144]: 42 U.S.C.§ 12147(a).

[^145]: 42 U.S.C. § 12183(a).

[^146]: 28 C.F.R. pt. 36, app. A. § 2.2.

[^147]: 42 U.S.C. § 12184.

[^148]: *See* Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d
    312 (S.D. Fla. 2002) (holding that websites without nexus are not
    covered by Title III); *see also* National Federation of the Blind
    v. Target Corporation*,* 452 F.Supp.2d 946 (N.D. Cal. 2006) (same,
    but also holding that website that does have a nexus to actual place
    of public accommodation does have to be accessible).

[^149]: *Id.*

[^150]: *See* Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2^nd^ Cir.
    1995) (holding that an owner of an apartment building had to make an
    exception for tenant with multiple sclerosis in parking space
    policy); *see also* United States v. Freer, 864 F.Supp. 324
    (W.D.N.Y. 1994) (holding owners of trailer park in violation of FHAA
    where owners refused to allow renter to install desired wheelchair
    ramp at her own cost).

[^151]: These include that "the public use and common use portions of
    such dwellings are readily accessible to and usable by handicapped
    persons; all the doors designed to allow passage into and within all
    premises within such dwellings are sufficiently wide to allow
    passage by handicapped persons in wheelchairs; and all premises
    within such dwellings contain the following features of adaptive
    design: an accessible route into and through the dwelling; light
    switches, electrical outlets, thermostats, and other environmental
    controls in accessible locations; reinforcements in bathroom walls
    to allow later installation of grab bars; and usable kitchens and
    bathrooms such that an individual in a wheelchair can maneuver about
    the space." 42 U.S.C. § 3604(f)(3)(c).

[^152]: *Cf. The Oregon Health Care Proposal and the Americans with
    Disabilities Act*, 106 Harv. L. Rev. 1296 (1993) (asserting that the
    proposal withstands ADA scrutiny).

[^153]: For a discussion, *see* JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH
    DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 324-28 (1993);
    Michael Ashley Stein, *From Crippled to Disabled: The Legal
    Empowerment of Americans with Disabilities,* 43 Emory L.J. 247,
    266-67 (1994).

[^154]: For a thoughtful discussion of these cases, and especially the
    role that disability rights advocates play within their parameters,
    see Samuel R. Bagenstos, *Disability, Life, Death, and Choice*, 29
    Harv. J. L. & Gender 425 (2006).

[^155]: The best known of these instances, the "Baby Doe" cases, are
    discussed in U.S. Comm'n on Civil Rights, *Medical Discrimination
    Against Children with Disabilities* (1989); *see also* Martha Minow,
    Making all the Difference: Inclusion, Exclusion, and American Law
    328-33 (1990).

[^156]: *See, e.g.,* Bowen v. Am. Hosp. Ass'n., 476 U.S. 610 (1986)
    (ruling against the use of Rehabilitation Act regulation that would
    prohibit hospitals from withholding treatment from infants with
    disabilities in the future); United States v. Univ. Hosp., State
    Univ. of NY, at Stony Brook, 729 F.2d 144 (2d Cir. 1984) (holding
    that the Rehabilitation Act was not apposite to circumstances
    involving the withholding of medical treatment).

[^157]: *See* Washington v. Glucksburg, 521 U.S. 702 (1997); Vacco v.
    Quinn, 521 U.S. 793 (1997).

[^158]: *See* Gonzales v. Oregon, 126 S.Ct. 904 (2006).

[^159]: This is especially true when guardians make these determinations
    on behalf of incapacitated persons with disabilities, as in the
    heavily publicized cases involving Nancy Beth Cruzan, Karen Ann
    Quinlan, and Terri Schaivo. *See* National Council on Disability,
    *Assisted Suicide: A Disability Perspective* (March, 1997),
    *available online at*
    \<[http://www.ncd.gov/newsroom/publications/1997/suicide.htm]{.underline}\>.

[^160]: *See* National Council on Disability Public Consultation,
    *Homeland Security, Emergency Preparedness, Disaster Relief and
    Recovery* (May, 2007), *available online at*
    \<<http://www.ncd.gov/newsroom/publications/2007/ncd_consultant_05-31-07.htm>\>.

[^161]: 473 U.S. 432 (1985).

[^162]: *Id.* at 441.

[^163]: *See* Pennsylvania v. Yeskey, 524 U.S. 206 (1998) (state prisons
    fall within coverage of Title II); *see also* Tennessee v. Lane, 541
    U.S. 509 (2004) (courts); Galloway v. Sup. Ct. of D.C., 816 F.Supp.
    12 (D.D.C. 1993) (state and municipal courts); Gorman v. Bartch, 152
    F.3d 907 (8^th^ Cir. 1998) (local police departments).

[^164]: *See* Galloway v. Superior Court of District of Columbia, 816
    F.Supp.12 (D.D.C. 1993) (state policy of not allowing individuals
    with visual impairments to serve on juries violates ADA).

[^165]: *See* Matthews v. Jefferson, 29 F.Supp. 2d 525 (W.D. Ar, 1998)
    (holding that county violated the ADA by failing to make courthouse
    readily accessible to paraplegic); *see also* Layton v. Elder, 143
    F.3d 469 (8^th^ Cir. 1998) (same).

[^166]: *See* State v. Schaim, 600 N.E.2d 661 (Ohio 1992); *see also*
    State v. Rivera, 480 N.Y.S.2d 426 (N.Y. Sup. Ct. 1984).

[^167]: 457 U.S. 307 (1982).

[^168]: *Id. See also* Diane M. Weidert, *Constitutional Rights of the
    Involuntarily Committed Mentally Retarded After Youngberg v. Romeo,*
    14 ST. MARY's L. J. 1113 (1982).

[^169]: 42 U.S.C. § 1997 *et seq*.

[^170]: *Id.* Additional information is posted on the U.S. Department of
    Justice Civil Rights Division Special Litigation Section website,
    *available online at* \<<http://www.usdoj.gov/crt/split/>\>.

[^171]: 546 U.S. 151 (2006).

[^172]: The DOJ, for example, does support some programs to work with
    people with disabilities who are the victims of violence. *See* \<
    [http://www.ojp.usdoj.gov/ovc/help/disabled.htm]{.underline}\>, and
    the NCD has entered into a strategic partnership with the DOJ on
    this issue. *See* National Council on Disability, *Joint Statement
    by the National Council on Disability Association of University
    Centers on Disabilities, and the National Center for Victims of
    Crime* (May 21, 2007), *available at* \<
    [http://www.ncd.gov/newsroom/publications/2007/05-21-07_jointstatement_crime.htm]{.underline}\>.

[^173]: 274 U.S. 200 (1927).

[^174]: 42 U.S.C. § 1396(r), 42 U.S.C. § 1395 i-3.

[^175]: *See* U.S. Const., XIV Amend., Sec. 1, Cl. 1; *see also* U.S.
    Const., Art. IV, Sec. 2, Cl. 1.

[^176]: 473 U.S. 432 (1985).

[^177]: *Id.* at 441. For a critique, see Anita Silvers and Michael
    Ashley Stein, *Disability, Equal Protection, and the Supreme Court:
    Standing at the Crossroads of Progressive and Retrogressive Logic in
    Constitutional Classification*, 35 U. Mich. J. L. Reform 81 (2002).

[^178]: 527 US 581 (1999).

[^179]: *Id.* at 593.

[^180]: *Id.* at 592, citing 28 CFR § 35.130(d).

[^181]: 28 C.F.R. § 35.160(a). *See* Soto v. City of Newark*,* 72
    F.Supp.2d 489 (D.N.J. 1999) (holding that city who failed to provide
    sign language interpreter for hearing impaired individuals getting
    married in municipal court violated ADA).

[^182]: 28 C.F.R. § 35.160(b)(1) (2003).

[^183]: *Id*. at § 35.160(b)(2).

[^184]: *Id*. at § 35.104(a).

[^185]: *Id*. at § 35.104(b).

[^186]: *Id*. at § 35.164.

[^187]: *See* Petersen v. Hastings Public Schools, 31 F.3d 705 (8th Cir.
    1994), (holding that plaintiff was not entitled to specific sign
    language system that was used in his home).

[^188]: *See* Martin v. Metropolitan Atlanta Rapid Transit Authority,
    225 F.Supp. 1362, 1377 (N.D. Ga 2002) (holding that a transit
    authority's website providing scheduling information for bus and
    other transit services must be accessible under Title II).

[^189]: *See* Summary of 508 Standards, *available at*
    \<<http://www.section508.gov/index.cfm?FuseAction=Content&ID=11>\>.

[^190]: 42 U.S.C. § 12188.

[^191]: 28 C.F.R. § 36.303(b).

[^192]: *See* Access Now, Inc. v. Southwest Airlines*, Co*, 227
    F.Supp.2d 312 (S.D. Fla. 2002) (holding that websites without nexus
    are not covered by Title III); *see also* National Federation of the
    Blind v. Target Corporation*,* 452 F.Supp.2d 946 (N.D. Cal. 2006)
    (same, but also holding that website that does have a nexus to
    actual place of public accommodation does have to be accessible).

[^193]: 47 CFR §§ 64.601 *et seq.*

[^194]: 47 U.S.C. § 609 *et. seq.*

[^195]: 29 U.S.C. § 3002.

[^196]: *See* WEBER, *supra* note Error: Reference source not found.

[^197]: 18 U.S.C. § 245.

[^198]: See
    \<[[http://www.fbi.gov/ucr/hc2006/table1.html]{.underline}](http://www.fbi.gov/ucr/hc2006/table1.html)\>.

[^199]: 42 U.S.C. § 12112(d)(3)(B) ("\[I\]nformation obtained regarding
    the medical condition or history of the applicant \[must be\]
    collected and maintained on a separate forms and in separate medical
    files and is treated as a confidential medical record, except that
    (i) supervisors and managers may be informed regarding necessary
    restrictions of the work or duties of the employee and necessary
    accommodations; (ii) first aid and safety personnel may be informed,
    when appropriate, if the disability might require emergency
    treatment; and (iii) government officials investigating compliance
    with this chapter shall be provided relevant information on request
    ... .").

[^200]: *See* Skinner v. Oklahoma, 316 U.S. 535 (1942).

[^201]: 274 U.S. 200 (1927).

[^202]: *See* Stanley v. Illinois, 405 U.S. 645 (1972); s*ee also*
    Santosky v. Kramer, 455 U.S. 745 (1982) (holding termination of
    parental rights must adhere to due process demands).

[^203]: *See* In re C.M., 2004 WL 1900100 (Iowa App. 2004) (allowing
    parents to oppose termination on grounds that it would violate the
    ADA); *see also* In re Welfare of H.S., 973 P.2d 474, 481 (Wash.
    App. 1999) (same).

[^204]: *See* Popovich v. Cuyahoga County Court, 276 F.3d 808 (6^th^
    Cir. 2002) (state must provide interpreter for hearing-impaired
    litigant in child custody hearing).

[^205]: *See, e.g.,* In re La'Asia Lanae S., 803 N.Y.S.2d 568, 569 (N.Y.
    App. Div. 2005) (ADA "has no bearing on" termination of parental
    rights proceedings"); In re Anthony P., 101 Cal.Rptr.2d 423, 425-26
    (Cal. App. 2000) (termination of parental rights proceedings ar enot
    "services, programs, or activities" for purposes of ADA).

[^206]: 20 U.S.C. §1400(d) (2000).

[^207]: *Id*. §1412(a)(1)(A).

[^208]: *Id*. § 1412(a)(3)(A).

[^209]: *Id*. § 1412(a)(5)(A).

[^210]: *Id*. § 1415(j).

[^211]: *Id*. § 1412(a)(1)(B).

[^212]: *Id*. § 1401(3)(B).

[^213]: 334 F. Supp. 1257 (E.D. Pa. 1971).

[^214]: *Id*. at 1260 (emphasis added).

[^215]: 347 U.S. 482 (1954)

[^216]: *Pennsylvania,* 334 F.Supp. at 1260.

[^217]: 348 F. Supp. 866, 875 (D.D.C. 1972).

[^218]: *See* Parker v. Universidad de Puerto Rico, 225 F.3d 1 (1^st^
    Cir. 2000); *see also Washington v. Indiana High School Athletic
    Association*, 181 F.3d 840, 852 (7^th^ Cir. 1999) (making reasonable
    modifications to athletic programs).

[^219]: *See* Naropa Inst*.,* (CO) (1993) (Office of Civil Rights
    finding that a school violated Section 504 when it required a
    student to sign a document stating that the provision of interpreter
    for 12 credits of course work was a financial hardship to the school
    and that "unless we can find other sources of income ..the
    \[school\] will not be able to continue this level of service.");
    *see also* United States v. Board of Trustees for University of
    Alabama, 908 F.2d 740 (1990) (holding that requiring
    hearing-impaired students to show that they lacked the financial
    means to pay for their own interpreters and other auxiliary aides
    violated Section 504).

[^220]: 42 U.S.C. § 423(d)(2)(A).

[^221]: *See, e.g.,* Aikens v. St. Helena Hospital, 843 F.Supp. 1329
    (N.D. Cal. 1994) (suggesting that private hospital might need to
    provide effective sign language interpreters under Title III of the
    ADA and Section 504 of the Rehabilitation Act); *see also* Majocha
    v. Turner, 166 F.Supp.2d 316 (W.D. Penn. 2001) (same); Olmstead v.
    Zimring, 527 U.S. 581 (1999) (holding that Title II of the ADA
    requires states to move individuals into community based settings,
    when appropriate, to the extent that they are able to do so and
    still attend to their complete population of individuals with mental
    disabilities); Rodde v. Bonta, 357 F.3d 988 (9^th^ Cir. 2004)
    (holding that Title II prevented county from closing rehabilitation
    center dedicated primarily to providing inpatient and outpatient
    rehabilitative care to severely disabled individuals); Lovell v.
    Chandler, 303 F.3d 1039 (9^th^ Cir. 2002) (holding that Title II
    prevented state from excluding category of people with disabilities
    from a Medicaid waiver program).

[^222]: *See, e.g.,* Alexander v. Choate, 469 U.S. 287 (1985) (holding
    that state's reduction in Medicaid coverage of annual inpatient
    hospitalization from twenty to fourteen days did not violate Section
    504 of the Rehabilitation Act, despite the fact that the policy
    would adversely impact people with disabilities.); Meyers v.
    Colorado Dep't of Health Services, 2003 WL 1826166 (10^th^ Cir.
    2003) (holding that Title II does not require state to change
    content of health services); Smith v. Moorman, 2002 WL 31182541
    (6^th^ Cir. 2002) (same); Doe v. Pfrommer, 148 F.3d 73 (2d Cir.
    1998) (same); Does 1-5 v. Chandler, 83 F.3d 1150 (9^th^ Cir. 1996)
    (same).

[^223]: *See* Carparts Distribution Center v. Automotive Wholesaler's
    Association of New England, 37 F.3d 12 (1^st^ Cir. 1994) (holding
    that disability insurance policy was covered under Title III); *but
    see* Parker v. Metropolitan Life Insurance, 121 F.3d 1006 (6^th^
    Cir. 1997) (holding that insurance policies are not covered by Title
    III of the ADA).

[^224]: "Titles I through IV of this Act shall not be construed to
    prohibit or restrict: (1) an insurer, hospital or medical service
    company, health maintenance organization, or any agent, or entity
    that administers benefit plans, or similar organizations from
    underwriting risks, classifying risks, or administering such risks
    that are based on or not inconsistent with State law; or (2) a
    person or organization covered by this Act from establishing,
    sponsoring, observing or administering the terms of a bona fide
    benefit plan that are based on underwriting risks, classifying
    risks, or administering such risks that are based on or not
    inconsistent with State law; or (3) a person or organization covered
    by this Act from establishing, sponsoring, observing or
    administering the terms of a bona fide benefit plan that is not
    subject to State laws that regulate insurance.

    Paragraphs (1), (2), and (3) shall not be used as a subterfuge to
    evade the purposes of titles I and III." 42 U.S.C. § 12201(c).

[^225]: *See* Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d
    Cir. 2000) (holding that "an entity covered by Title III is not only
    obligated by the statute to provide disabled persons with physical
    access, but is also prohibited from refusing to sell them its
    merchandise by reason of discrimination against their disability.").

[^226]: There are a variety of reasons this happens. First, in some
    cases, courts reasoned that an insurance policy was not a "public
    accommodation" for purposes of Title III of the ADA. *See* Kolling
    v. Blue Cross, 318 F.3d 715 (6th Cir. 2003); *see also* Ford v.
    Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998). Second, courts
    reasoned that differentiation in insurance policies was not
    actionable discrimination on the basis of disability. *See*
    Soshinksy v. First Unum Life Ins. Co., No. 99-36187, 2001 WL 50535
    (9th Cir. Jan 19, 2001); *see also* McNeil v. Time Ins. Co., 205
    F.3d 179 (5th Cir. 2000); Doe v. Mut. of Omaha Ins. Co., 179 F.3d
    557 (7th Cir. 1999). Third, courts found that the ADA\'s exemption
    for insurance policies applied and controlled the outcome of the
    case. *See* Fitts v. Nat\'l. Mortgage. Ass\'n, 236 F.3d 1 (D.C. Cir.
    2001).

[^227]: 527 U.S. 581 (1999).

[^228]: United States v. Robel, 389 U.S. 258, 265 n.11 (1967).

[^229]: *See* United States v. Carolene Products Co., 304 U.S. 144, 151
    (1938).

[^230]: *See* City of Cleburne, Texas v. Cleburne Living Center, 473
    U.S. 432 (1985).

[^231]: 42 U.S.C. § 12112(a).

[^232]: *Id.* § 12111(5)(A).

[^233]: 42 U.S.C. § 12112(b)(5)(A-B).

[^234]: *Id.* § 12111(9).

[^235]: *See* 42 U.S.C § 12112(10)(A). According to the statute, the
    factors to be considered include (i) the nature and cost of the
    accommodation needed under this chapter; (ii) the overall financial
    resources of the facility or facilities involved in the provision of
    the reasonable accommodation; the number of persons employed at such
    facility; the effect on expenses and resources, or the impact
    otherwise of such accommodation upon the operation of the facility;
    (iii) the overall financial resources of the covered entity; the
    overall size of the business of a covered entity with respect to the
    number of its employees; the number, type, and location of its
    facilities; and (iv the type of operation or operations of the
    covered entity, including the composition, structure, and functions
    of the workforce of such entity; the geographic separateness,
    administrative, or fiscal relationship of the facility or facilities
    in question to the covered entity." *Id.* at (C)(i-iv).

[^236]: *See* 12111(3). *See also* Chevron v. Echazabal, 536 U.S. 75
    (2002) (extending "direct threat" defense to harm to self).

[^237]: 29 U.S.C. § 791.

[^238]: *Id.* at § 793.

[^239]: 29 C.F.R. § 1614.203.

[^240]: 209 U.S. 123 (1908).

[^241]: *See* Board of Trustees of the University of Alabama v. Garrett,
    531 U.S. 356 (2001)(holding that Congress did not validly abrogate
    state sovereign immunity regarding employment ADA claims, and
    therefore individuals can not sue states for damages).

[^242]: *See* Garrett v. Univ. of Alabama at Birmingham, 344 F.3d 1288
    (11^th^ Cir. 2003) (state waived sovereign immunity by accepting
    federal funds under Rehab Act); *but see* Purvis v. Williams, 73
    P.2d 740 (2003) (Supreme Court of Kansas holding opposite).

[^243]: 2 U.S.C. § 1341 *et. seq.*

[^244]: 29 U.S.C. § 654.

[^245]: 29 U.S.C. § 701(b)(1).

[^246]: 20 C.F.R. § 411.125(b).

[^247]: An overview is contained in the Social Security Disability
    Programs webpage, *available online at*
    \<<http://www.ssa.gov/disability/>\>.

[^248]: *See generally* Matthew Diller, *Entitlement and Exclusion: The
    Role of Disability in the Social Welfare System*, 44 UCLA L. Rev.
    361 (1996).

[^249]: *See generally* Michael Waterstone, *Constitutional and
    Statutory Voting Rights for People with Disabilities*, 14 Stan. Law
    & Policy Review 353 (2003).

[^250]: *See* Doe v. Roe, 156 F.Supp.2d 35 (D. Me. 2001) (striking down
    such a state statute as violating the equal protection clause of the
    Fourteenth Amendment).

[^251]: 42 U.S.C. § 1973ee-1(a).

[^252]: 19 U.S.C. § 794(a).

[^253]: The "purposes" section of the ADA does specifically reference
    voting: "\[D\]iscrimination against individuals with disabilities
    persists in such critical areas as employment, housing, public
    accommodations, education, transportation, communication,
    recreation, institutionalization, health services, *voting*, and
    access to public services." 42 U.S.C. § 12101(a)(3).

[^254]: *See* New York v. County of Schoharie*,* 82 F. Supp. 2d 19, 25
    (N.D.N.Y. 2000) (holding that accessibility to polling places
    qualifies as a "service, program, or activity"); *see also* Am.
    Ass\'n of People with Disabilities v. Hood, 310 F. Supp. 2d 1226,
    1234 (M.D. Fla. 2004).

[^255]: *See, e.g.,* New York ex rel Spitzer v. County of Schoarie, 82
    F.Supp.2d 19 (N.D.N.Y. 2000) (County violated ADA by having
    habitually inaccessible polling places).

[^256]: *See* American Association of People with Disabilities v. Hood,
    310 F.Supp.2d 1226 (M.D. Fla. 2004) (holding that Florida had
    violated Title II by purchasing voting system that was not readily
    accessible to people with disabilities without third-party
    assistance); *but see* American Association of People with
    Disabilities v. Shelley, 324 F.Supp.2d 1120 (C.D. Cal. 2004)
    (holding that Title II does not provide the right to a secret and
    independent vote for people with disabilities).

[^257]: *See* Doe v. Roe, 156 F.Supp. 35 (D. Me. 2001) (Maine
    disenfranchisement statute violated equal protection clause of
    Fourteenth Amendment).

[^258]: 42 U.S.C. §§ 15301-545

[^259]: *Id.* at § 15421(b).

[^260]: *Id.* at § 154481(a)(3)(A).

[^261]: The Title III definition of "privately owned place of public
    accommodation" includes (A) an inn, hotel, motel, or other place of
    lodging, except for an establishment located within a building that
    contains not more than five rooms for rent or hire and that is
    actually occupied by the proprietor of such establishment as the
    residence of such proprietor; (B) a restaurant, bar, or other
    establishment serving food or drink; (C) a motion picture house,
    theater, concert hall, stadium, or other place of exhibition or
    entertainment; (D) an auditorium, convention center, lecture hall,
    or other place of public gathering; (E) a bakery, grocery store,
    clothing store, hardware store, shopping center, or other sales or
    rental establishment; (F) a laundromat, dry-cleaner, bank, barber
    shop, beauty shop, travel service, shoe repair service, funeral
    parlor, gas station, office of an accountant or lawyer, pharmacy,
    insurance office, professional office of a health care provider,
    hospital, or other service establishment; (G) a terminal, depot, or
    other station used for specified public transportation; (H) a
    museum, library, gallery, or other place of public display or
    collection; (I) a park, zoo, amusement park, or other place of
    recreation; (J) a nursery, elementary, secondary, undergraduate, or
    postgraduate private school, or other place of education; (K) a day
    care center, senior citizen center, homeless shelter, food bank,
    adoption agency, or other social service center establishment; and
    (L) a gymnasium, health spa, bowling alley, golf course, or other
    place of exercise or recreation." 42 U.S.C. § 12181.

[^262]: 42 U.S.C. § 12182.

[^263]: 42 U.S.C. § 12182(b)(2)(a)(ii).

[^264]: *See* PGA Golf Tour v. Martin, 532 U.S. 661 (2001).

[^265]: *See* Montalvo v. Radcliffe, 167 F.3d 873, 874 (4^th^ Cir. 1999)
    (holding that child with AIDS could not participate in karate
    class).

[^266]: *See* Anderson v. Little League Baseball, 794 F.Supp. 342 (D.
    Ariz. 1992) (holding that Little League Baseball falls within the
    ambit of Title III because they own, lease, or operate a place of
    public accommodation).

[^267]: 47 U.S.C. § 609 *et. seq.*

[^268]: *See* Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d
    579, 789 (D.C. 1997) (holding that arena that provided lines of
    sight over standees for 70% of its wheelchair seats was in
    accordance with ADA regulations); *but see* Caruso v.
    Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3d Cir.
    1999) (holding that ADA did not require line of sight over standing
    spectators).

[^269]: *See* Lara v. Cinemark USA, Inc*.*, 207 F.3d 783 (5^th^ Cir.
    2000) (holding that viewing angles for wheelchair seats do not need
    to be as comfortable as those offered to the general public); *but
    see* United States v. Hoyts Cinemas Corp., 256 F.Supp.2d 73 (D. Mass
    2003) (holding that wheelchair seats must be integrated into stadium
    general stadium seating plan).

[^270]: Like Title III, the precise accessibility requirements are a
    function of whether the facility pre- or post-dates the ADA.
    Physical structures, or "facilities," that pre-dated the ADA must be
    readily accessible to and useable by individuals with disabilities,
    when viewed in their entirety. 28 C.F.R. § 150(a). New facilities
    and alterations of existing facilities must be designed and
    constructed in such a manner that the facility or part of the
    facility (or the alteration) is readily accessible to and usable by
    individuals with disabilities. 28 C.F.R. § 35.151(a), (b).

[^271]: *See* McPherson v. Michigan High School Athletic Association,
    119 F.3d 453 (6^th^ Cir. 1997) (holding that Association's
    eight-semester rule did not have to be modified even if it excluded
    student whose progress through high school was slowed by a learning
    disability); *but see* Washington v. Indiana High School Athletic
    Association, 181 F.3d 840, 852 (7^th^ Cir. 1999) (holding opposite).

[^272]: *Available online at* \<<http://www.census.gov/acs/www/>\>.

[^273]: *Available online at*
    \<<http://www.census.gov/dmd/www/products.html>\>.

[^274]: *Available online at*
    \<<http://www.bls.census.gov/cps/cpsmain.htm>\>.

[^275]: *Available online at* \<<http://www.cdc.gov/nchs/nhis.htm>\>.

[^276]: *Available online at*
    \<[http://www.cdc.gov/nchs/about/major/nhis_dis/nhis_dis.htm]{.underline}\>.

[^277]: *Available online at* \<<http://www.bls.census.gov/sipp/>\>.

[^278]: *Available online at* \<<http://www.ilr.cornell.edu/edi/>\>.

[^279]: *Id.*

[^280]: *Available online at*
    \<<http://www.ilr.cornell.edu/edi/c-statistics.cfm>\>.

[^281]: *Available online at*
    <http://www.ilr.cornell.edu/edi/disabilitystatistics/>[\>.]{.underline}

[^282]: *Available online at*
    \<<http://www.ilr.cornell.edu/edi/disabilitystatistics/StatusReports/2006-PDF/2006-StatusReport_US.pdf?CFID=24863415&CFTOKEN=95078547>\>.

[^283]: *Available online at*
    \<<http://www.ilr.cornell.edu/edi/lsvrsp/Application/Index.cfm?CFID=24863415&CFTOKEN=95078547>\>.

[^284]: *Available online at* \<<http://dsc.ucsf.edu/main.php>\>.

[^285]: *Available online at*
    \<[http://www.colemaninstitute.org/Research/RERCdescription.php]{.underline}\>.

[^286]: Among other tasks, the chair of NIDRR heads the Interagency
    Committee on Disability Research which directs information exchanges
    on disability research activities among some seventy member
    agencies, which in turn may fund disability-specific data collection
    and analysis. *Available online at* \<<http://www.icdr.us/>\>.

[^287]: *Available online at*
    \<<http://www.disabilityresearch.rutgers.edu/>\>.

[^288]: *Available online at*
    \<[http://psidonline.isr.umich.edu/]{.underline}\>.

[^289]: For instance, the United States Department of Labor, Office of
    Disability Employment Policy, sponsors the Job Accommodation Network
    housed at the University of West Virginia, *available online at*
    \<[http://www.jan.wvu.edu/]{.underline}\>.

[^290]: DHHS, 45 CFR 46.101.a, 2008.

[^291]: 45 C.F.R. 46.101, Subpart D.

[^292]: The State Department posts these human rights reports on its
    website, *available online at*
    \<<http://www.state.gov/g/drl/rls/hrrpt/>\>.

[^293]: *Id.*

[^294]: *See* Fourth Annual Report on the Implementation of the USAID
    Disability Policy, *available online at:* \<[http://pdf.dec.org/pdf
    docs/PDACF599.pdf](http://pdf.dec.org/pdf docs/PDACF599.pdf)\>.

[^295]: *See* U.S. Agency for International Development, *USAID
    Disability Policy Paper* (1997) *available at*
    \<[http://pdf.dec.org/pdf_docs/PDABQ631.pdf]{.underline}\>. *See
    also* U.S. Agency for International Development, *USAID Disability
    Policy -- Assistance* (2004), *available online at*
    \<[http://www.usaid.gov/about_usaid/disability]{.underline}\>; U.S.
    Agency for International Development, USAID Acquisition and
    Assistance Disability Policy Directive (2004), *available online at*
    \<[http://www.usaid.gov/about_usaid/disability/]{.underline}\>; U.S.
    Agency for International Development, *USAID Acquisition and
    Assistance Policy Directive (Disability Policy on New Construction)*
    (2005), *available at*
    \<[http://www.usaid.gov/about_usaid/disability/]{.underline}\>.

[^296]: 42 U.S.C. § 2000e-5(d).

[^297]: 29 C.F.R. § 1601.20

[^298]: 29 C.F.R. §1601.27.

[^299]: *See* EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir. 2005)
    ("EEOC is not confined to claims typified by those of the charging
    party.") (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980).

[^300]: 42 U.S.C. § 12133.

[^301]: 541 U.S. 509 (2004).

[^302]: *See* Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9^th^
    Cir. 2001).

[^303]: 536 U.S. 181 (2002).

[^304]: 28 C.F.R. § 35.170(b).

[^305]: *Id.* § 35.170(b).

[^306]: 42 U.S.C. § 12188(a).

[^307]: 42 U.S.C. § 12188(b)(1)(B).

[^308]: *Id.* § 12188(b)(2)(A).

[^309]: *Id.* § 12188(b)(2)(C).

[^310]: *See* Sch. Comm. of Town of Burlington v. Dept. of Educ., 471
    U.S. 359, 369 (1985).

[^311]: *See, e.g*., Lester H. v. Gilhool, 916 F.2d 865, 873 (3d Cir.
    1990); Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 857-58
    (11th Cir. 1988); Miener v. State of Missouri, 800 F.2d 749, 753
    (8th Cir. 1986).

[^312]: *See* Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524,
    529-32 (4th Cir. 1998); *see also* Crocker v. Tenn. Secondary Sch.
    Athletic Ass'n, 980 F.2d 382, 386-87 (6th Cir. 1992); Charlie F. v.
    Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir.
    1996); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996);
    Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir.
    1999); Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1273 (10th Cir.
    2000); Ortega v. Bibb County School Dist., 397 F.3d 1321, 1325
    (2005).

[^313]: *See* W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995); *see
    also* Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 466 (5th
    Cir. 1995) (nominal damages); Quackenbush v. Johnson City Sch.
    Dist., 716 F.2d 141, 148 (2d Cir. 1983); see also Polera v. Bd. of
    Educ. of Newburgh, 288 F.3d 478, 483-86 (2d Cir. 2002) (monetary
    damages would not be available even if plaintiff had not failed to
    exhaust administrative remedies, nonetheless, available under § 1983
    for IDEA violation).

[^314]: 20 U.S.C. § 1415(i)(3)(B) (2000).

[^315]: *Id*. § 1415(i)(3)(C).

[^316]: *Id*. § 1415(i)(3)(D)(ii).

[^317]: *See* Arlington Central School District Board of Education v.
    Murphy, 126 S.Ct. 2455 (2006).

[^318]: 42 U.S.C. § 15481 (2004).

[^319]: *See* Federal Defendants' Opposition to Plaintiff's Motion for
    Preliminary Injunction, 2006 WL 1505602, \*2 (arguing HAVA confers
    no private right of action) in Taylor v. Onorato, 428 F.Supp.2d 384
    (W.D. Pa. 2006) (holding that private plaintiffs have no private
    right of action HAVA access provisions).

[^320]: 42 U.S.C. 15511 (2004).

[^321]: 42 U.S.C. §§ 1997 *et. seq*.

[^322]: *See* 42 U.S.C. § 3613.

[^323]: *Id*. at § 3613(b).

[^324]: *Id*. at § 3613(c)(1).

[^325]: *Id*. at § 3613(e).

[^326]: *See* 42 U.S.C. § 3612.

[^327]: *See id.* § 3612(p).

[^328]: 42 U.S.C. § 3614.