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Wednesday, April 15, 2015

Disability Discrimination and Family Law

Tomorrow, the Second Circuit will hear arguments in Forziano v. Independent Group Home LivingPaul Forziano and Hava Samuels lived at different group homes in New York.  Paul is 31 and in the mild-to-moderate range of intellectual disability; Hava is 37 and in the moderate range.  After meeting, falling in love, and dating for six years, they decided to get married.  Their parents were supportive of their decision.

They requested that they be allowed to live together as a married couple in one of their group homes.  This request was refused.  Over time, various explanations were offered, including that the group homes were not adequately staffed to support the married couple with the dynamics of their relationship, that home designs could not accommodate married couples, and that the request was unprecedented.  These reasons were generally shown to be inaccurate.  Other explanations more explicitly ran through the opinions of medical and rehabilitation personnel that people with intellectual disabilities generally, and Paul and Hava specifically, should not be getting married (despite the fact that their right to do so was protected by state law).  Paul and Hava did get married, and were forced to live 3 miles apart from each other.  Only after filing a lawsuit were they able to find a place in a group home together.  The trial court denied all of plaintiffs' claims for relief, holding, amongst other things, that plaintiffs had been treated differently because they wanted to get married, not because they had disabilities.

In a series of recent papers, I have suggested that disability has lower political salience than some other movements and/or issues (like marriage equality, the civil rights movement, abortion, or even gun rights).  By this I mean that people care about these issues, and vote based on them, in a way that they simply do not for disability.  Disability has generally stayed out of the culture wars.  Inside the movement, disability is thought about in civil rights terms.  Outside, not so much.

To the extent I am right, there are no doubt lots of causes for this.  And it is interesting (or at least I think it is interesting) to think about what, if anything, can or should be done about it from a disability movement perspective.  Making disability rights more of a mainstream civil rights issue would require highlighting and publicizing some examples of discrimination that critical mass of people would pay attention to and intuitively feel are wrong.

Cases like the above, and family law in general, may provide some examples that get people to notice.  The right to marry, live together, and raise children is something with emotional resonance.  And Forziano is not an isolated instance.  There are still a lot of state family laws and procedures, reflective of outmoded stereotypes and assumptions, which formally and informally discriminate against people with disabilities.  As a result, parents with disabilities have children removed from their care, face barriers in adoption, and are more likely to lose custody in divorce, amongst other things.  This issue is starting to get more attention from government agencies and even media, but probably has a ways to go before it is something that people outside the movement discuss around the dinner table. 

Posted by Michael Waterstone on April 15, 2015 at 11:36 AM | Permalink


Thanks for this very interesting post. I did some initial research on ADA and RA claims in the family law context a few years back (for a project that has yet to come to fruition, if it ever will at this point!) and found very widespread rejection of such claims (often simply refusing to apply the statutes at all to family law contexts, even when disability was explicitly made at issue). I'll be curious this Term what if anything the Court has to say about the extension of the ADA to policing in Sheehan, since I think it has some real potential implications for extending the ADA into family law contexts as well. (This was also part of why I was so interested to read your Disability Constitutional Law piece -- and I tend to agree that the types of statutes that explicitly deny family rights based on disability provide a really interesting public advocacy entry point, and obviously a critically important issue to the people who are affected by them).

Posted by: Katie Eyer | Apr 16, 2015 2:05:19 PM

As bad as the situation is for disabled folks who want to marry, consider how much worse it would be for two single who wanted to cohabit and not marry.

Single are the new LGBTs; they are seriously exploited at tax time and denied 1000 other rights and privileges now granted to married couples, whether straight or gay.

Posted by: Jimbino | Apr 16, 2015 1:27:43 PM

Michael raises a critical question: Has disability established its place among mainstream civil rights movements? To answer this question, consider the fundamental tension between privacy and publicity in the disability arena. Historical views of disability as a medical diagnosis have produced significant privacy protections (HIPAA, FERPA, etc.) that undercut broader efforts to publicly circulate information about disability as one component of identity and a more nuanced vision of the capacity of people with disabilities (intellectual, developmental, psychosocial).

Michael Selmi, Michael Stein, and others (not named “Michael”) have suggested that the legislative move to define disability as a social construction predated the normative shift in society more broadly. That may certainly be true. As the 25th Anniversary of the Americans with Disabilities Act approaches (July 2015), we should take a good look at the tension between privacy and publicity in the disability context and consider legal and policy solutions designed to address scarcity of information about disability as nuanced, complex, and part of the human condition. My forthcoming article in the American University Law Review tackles the question of disability stigma through the lens of civil procedure (working draft on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484576). I welcome comments and further discussion. Many thanks to Michael for posting in area of law often missing on this blog!

Posted by: Jasmine Harris | Apr 16, 2015 10:31:21 AM

Thanks Glenn. I think this case absolutely speaks to Liz's work, which I think very highly of. And maybe the political salience point is just a case of when you have a hammer, everything looks like a nail. But I written about family law as an area with a potential to break through to get more people to think about disability as a civil rights issue, both because the fact patterns can be pretty compelling and the state laws are often expressly discriminatory.

And thank you Kevin. What I heard and observed based on the Super Bowl was some measure of satisfaction and that disability was being presented in such a high profile place, but some dissatisfaction and even exasperation that it pushed a certain narrative of disability (referred to in some quarters as inspiration porn). I tended to agree on both accounts.

Posted by: Michael | Apr 15, 2015 11:08:09 PM

Michael, thanks for the really interesting post. I am surprised you went from this case to a more general claim about political salience of disability rights. I would think this case speaks more specifically to the ableist discomfort with viewing individuals with disabilities as sexual beings, and think a lot about Liz Emens' work on intimate discrimination here. I also wondered whether your claim rang truer for intellectual versus other disabilities? In any event, a very nice post.

Posted by: I. Glenn Cohen | Apr 15, 2015 10:58:04 PM


my spouse is a disabilities scholar in education, so it gets more attention in my household than others. And at least with regard to public notice, we were surprised at how many of the commercials that aired during the Super Bowl this year involved individuals with disabilities, including commercials by McDonalds, Toyota and Microsoft. I'm told there were mixed reactions to them, and I'll leave it up to you to help me understand what it means, if anything, for the salience of disability rights.

Posted by: Kevin Lapp | Apr 15, 2015 1:43:03 PM

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