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 
1

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. 

2
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. 

3
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. 

4
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 inclusivedevelopment 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. 

5
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. 

6
7

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
8

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.
9

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 nondiscrimination 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 nonprovision 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 
10

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.
11 

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. 
12 

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
13 

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 Order15 and later, recommendations contained in an interagency report16

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 statesponsored 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 
14 

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 
15 

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. 
16 

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 Act31 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 
17 

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 
18 

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 
19 

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 
20 

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. 
21 

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,” 
les.53 

22 

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 ru

Finally, despite an Executive Order reinforcing the Olmstead decision54 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 

23 
24 

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 
25 

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 
26 

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 

27 
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 nonemployment 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 

28 
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 

29 
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 

30 
31 

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 NGOs92 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 
32 

economic measures.96 In this way, the CRPD provides a useful metric for selfexamination, 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. 
33 

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, 

34 
(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 

35 
36 

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. 
37 

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 

38 
39 

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

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

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

The IDEA,99 (formerly known as the Educational for All Handicapped Children 

Act of 1975), deals with the educational rights of individuals with disabilitie

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. 

s. 

Voting Statutes

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 

40 
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

The Air Carrier Access Act103 prohibits discrimination by airline carriers against 

individuals with disabilities. 

Fair Housing Amendments Act of 1988

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

The ADA105 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: 

41 
(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 

42 
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

43 
44 

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 
45 

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 
46 

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 
47 

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
48 

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 
49 

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).
50 

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 
51 

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. 
52 

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
53 

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. 

 
54 

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.
55 

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 

56 
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 

57 
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 ADA140 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 

58 
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 

59 
60 

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
61 

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 
62 

of the lives of persons with disabilities.159
63 

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
64 

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 
65 

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.
66 

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 
67 

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. 
68 

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 Act169 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’ 
69 

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. 

70 
71 

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 
72 

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. 
73 

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 
74 

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. 
75 

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. 
76 

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 
77 

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. 
78 

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. 
79 

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 individua

disabilities.”

l with 

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 

80 
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 

81 
82 

accommodation.192 

Title IV of the ADA and its implementing regulations193 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. 
83 

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 
84 

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
85 

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 

86 
87 

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
88 

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. 

89 
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 

90 
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 

91 
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. 

92 
93 

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.
94 

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 
95 

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 
96 

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. 
97 

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 

98 
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 

99 
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 

100 
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 

101 
102 

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.
103 

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
104 

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
105 

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

106 
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 

107 
108 

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.
109 

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 

110 
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 

111 
112 

athletics.271
113 

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 
ademic 

114 

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 (NIDRR) 

funds the Cornell University ILR School Employment and Disability Institute278

which in addition to generating national and international data and policy-based 

research279 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 ac

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 
115 

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. 
116 

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 
117 

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
118 

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 

119 
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 

120 
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. 

121 
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 

122 
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 

123 
124 

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
125 

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 ____

(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.

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>. 
126 

14 U.S. Dep’t of Homeland Security, National Response Plan iii (2004), available at 

<http://www.dhs.gov/xlibrary/assets/NRPbaseplan.pdf>. 

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 12, 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.> 

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>.

37 See Silvers & Stein, Disability and the Social Contract, supra note 23. 

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 longterm 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. 
127 

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 45, 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>. 

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). 
128 

59 534 U.S. 184 (2002) 60 See 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 45 

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:// 

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). 
129 

77 See Waterstone, supra note 12 (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 >. 

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> (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.”); see 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.”). 
130 

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). 
131 

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 (3rd 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 (9th Cir. 2002) (holding that sidewalks were covered by Title II); 

Rodde v. Bonta, 357 F.3d 988 (9th 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 
132 

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 (2nd 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>. 

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 (8th 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). 
133 

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 (8th 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>, 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>. 

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 33. 
134 

197 18 U.S.C. § 245. 

198 See <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); see 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 (6th 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 (1st Cir. 2000); see also Washington v. 

Indiana High School Athletic Association, 181 F.3d 840, 852 (7th 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 (9th Cir. 2004) (holding that Title II prevented 

county from closing rehabilitation center dedicated primarily to providing inpatient and outpatient 
135 

rehabilitative care to severely disabled individuals); Lovell v. Chandler, 303 F.3d 1039 (9th 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 (10th

Cir. 2003) (holding that Title II does not require state to change content of health services); Smith 

v. Moorman, 2002 WL 31182541 (6th Cir. 2002) (same); Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 

1998) (same); Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir. 1996) (same). 223 See Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, 37 

F.3d 12 (1st Cir. 1994) (holding that disability insurance policy was covered under Title III); but 

see Parker v. Metropolitan Life Insurance, 121 F.3d 1006 (6th 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 
136 

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 (11th 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 
137 

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 (4th 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 (5th 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 (6th 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 (7th 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>. 

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/>.
138 

282Available online at <http://www.ilr.cornell.edu/edi/disabilitystatistics/StatusReports/2006-

PDF/2006-StatusReport_US.pdf?CFID=24863415&CFTOKEN=95078547>. 

283Available online at

<http://www.ilr.cornell.edu/edi/lsvrsp/Application/Index.cfm?CFID=24863415&CFTOKEN=950785

47>. 

284 Available online at <http://dsc.ucsf.edu/main.php>. 

285 Available online at <http://www.colemaninstitute.org/Research/RERCdescription.php>. 

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/>. 

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/>.

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>. 

295 See U.S. Agency for International Development, USAID Disability Policy Paper (1997) 

available at <http://pdf.dec.org/pdf_docs/PDABQ631.pdf>. See also U.S. Agency for International 

Development, USAID Disability Policy – Assistance (2004), available online at 

<http://www.usaid.gov/about_usaid/disability>; U.S. Agency for International Development, 

USAID Acquisition and Assistance Disability Policy Directive (2004), available online at

<http://www.usaid.gov/about_usaid/disability/>; 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/>. 

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 (9th 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. 
139 

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.