The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

During a panel discussion on public education, James Baldwin once said that 鈥渆ducation is a billion dollar industry and the least important part of that industry .鈥�  Today, that statement still reigns true.  The to return limited local control to Little Rock School district is not only ineffective but is problematic and divisive.  The will consist of a board elected by the community that would only be responsible for the non-failing schools, while the failing schools, which happen to be the predominantly black schools with inadequate resources, would remain under the State鈥檚 control.  Since , the State has assumed control of Little Rock鈥檚 public schools and that control has yielded very few improvements.  The of Hall High School in Little Rock, AR, and the Little Rock School District鈥檚 new boundaries are going to racially divide students and .  The district is closing J.A. Fair High School and McClellan high school and consolidating the .  The students from these schools will be assigned to either Central High School, Hall High School, or the new high school鈥�.  The boundaries are supposed to be ; however, once implemented the boundaries would place more African American and Hispanic children at Southwest High School.  Southwest High School would be the only high school without a

Arkansas is nationally known for its failure to desegregate High School with deliberate speed, so the Little Rock School District鈥檚 new plan for a new high school, the transformation of another high school and new are going to result in history being repeated.  Cooper v. Aaron, 358 U.S. 1 (1958).  This plan officiated by the Arkansas Board of Education further exemplifies 鈥渢oday鈥檚 methods of avoiding integration鈥� by further dividing the schools by race and continuing to perpetuate the 鈥�鈥� principle.

Hall High was opened in 1957 as the city鈥檚 second white high school.  Two years later, integrated Hall High School, and like most schools that were integrated in the South, the white students left in large numbers.  Today, Hall High School is known as one of the predominantly black high schools. In the school year, 629 of the students were African American; 338 were Hispanic, and 57 were white.  The new plan for Hall High School would essentially funnel most of the minority students out and into Southwest High School.  Many of the current students of Hall High School will not experience the improvements of the high school; the tiered system will segregate students and a community that is still mending from a history of desegregation of segregated schools and .

As I began with James Baldwin, I end with James Baldwin.  鈥淣ot everything that is faced can be changed, but nothing can be until it is faced.”  The State鈥檚 takeover of the Little Rock School District, just months after the first time in history that the predominantly black district saw its first elected majority-, should be questioned.  The State鈥檚 decision to take power away from the communities that send their children to these schools should be questioned.  The State鈥檚 plan and how it affects every student should be questioned. Students should not remain in failing schools that are under the State鈥檚 control.  Allotting some control to school boards should not be determinative of whether the school is failing when schools under the State鈥檚 control have yielded no success.  The State鈥檚 plan to provide top-bottom intervention should be questioned, because history has made clear the effects of segregation. The Arkansas Board of Education鈥攕tate-appointed officials鈥攁nd elected leaders should think long and hard before repeating history, if not for anything else, for the well-being and success of the child, the most important thing in public education.

The post Repeating History:聽 The “New” Little Rock School District appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

Plans are moving forward for Arkansas to open the first private prison in . The state鈥檚 previous experiment with private lockups lasted only four years, and it resulted in a 2003 Department of Justice inquiry concluding that conditions at the formerly private facilities were . It is worth asking why Arkansas is reinstating private prisons now, given the abuses at these facilities nationwide and the inherent tension between cutting costs and providing adequate care to prisoners under law. 

Bradley and Drew counties are in the late stages of approving a contract with LaSalle Corrections, based in Ruston, Louisiana, to operate a 600-bed facility, the location of which has . Under contracts currently under review, this proposed facility would reserve 500 beds for prisoners from the Arkansas Department of Corrections (ADC), the state prison system, and for detainees from the counties. The facility is being described as a 鈥渞egional jail,鈥� despite the fact that the majority of inmates are to be state prisoners. The includes a 20-year contract between ADC and Bradley and Drew counties, and a separate contract between Bradley and Drew counties and LaSalle Corrections. 

The facility鈥檚 designation as a regional jail run by the counties, instead of a prison run by the state, is a justification for the state to cut costs by adhering to lower standards of training and lower staff salaries than the ADC rate. As the Arkansas Democrat-Gazette , 鈥淸t]he guards at the regional jail will get a week鈥檚 worth of training, which is the state standard for local jails. Guards at state prisons are required to undergo six weeks of training. Id. Officers at the regional jail also will earn a lower starting salary than officers at state prisons.鈥� Id. The largest private prison companies, such as LaSalle, CoreCivic, and Geo Group, profit from keeping costs below the appropriation they are paid by the state per inmate, which is set lower than the amount the state pays per inmate in its public . The largest cost is labor, particularly paying competitive wages and maintaining sufficient . Medical care is another major

Currently, ADC with LaSalle to hold about 325 prisoners across the state line at the Bowie County Correctional Center in Texarkana, Texas. As the Texarkana Gazette , the local county commissioners are seeking bids for new management of Bowie County Correctional and its LaSalle-run neighbor, Bi-State Jail. Id. Bi-State oversaw four in-custody deaths since 2015, and Bowie County has been determined to be non-compliant with the Texas Commission on Jail Standards due to inadequate staffing and medical care. Id. Arkansas plans to move the prisoners currently held at Bowie to the new facility in Bradley or Drew. Id.

Arkansas鈥檚 last term of prison privatization lasted from 1998-2001, when the Wackenhut Corrections Corporation鈥�since rebranded as the Geo Group鈥�operated the McPherson women鈥檚 prison and Grimes Unit, holding youthful offenders, both in Newport. Id. Shortly after the state took over operations of McPherson and Grimes, the United States Department of Justice released a in 2003, concluding that conditions at the prisons were unconstitutional due to deliberate indifference to serious medical needs, lack of protection from physical and sexual harm, and unsafe and unsanitary conditions. A 2008 to privatize the Arkansas prison system by then-State Representative Johnny Hoyt was opposed by ADC through its spokesperson, who cited the experience with Wackenhut at McPherson and Grimes as a reason why the ADC was reluctant to revisit private operators. 

The state owes an equal standard of care to its prisoners when it is contracting out to private companies, as it does to all other inmates in its custody. The Supreme Court of the United States held that 鈥淸c]ontracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.鈥� West v. Atkins, 487 U.S. 42, 56 (1988). 

Arkansas鈥檚 brief but disastrous history with prison privatization and Texas鈥檚 finding that the LaSalle-run jails in Texarkana are noncompliant with that state鈥檚 standards should be cause for concern that the state is setting itself up to repeat the mistakes of the past. 

The post Revisiting Private Prisons in Arkansas appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

Arkansas is a poverty-stricken state and ranks among the 5 states with the highest poverty rates in the country, 19.2% in 2014. 19 counties experience extreme poverty with a poverty rate of 25% or greater. Given the high poverty rates, there are few resources available, either in the public or private arena, to adequately address sexual assault, human trafficking, and domestic violence.  In 2017, there were 650 cases of sexual assault reported in Arkansas. Given that only a third of sexual assault cases are reported, presumably, the number of actual sexual assaults that actually occurred in 2017 was in the thousands. Sexual assault has many emotional and psychological short term and long-term effects. According to the DOJ, 30% of women who were raped report symptoms of PTSD, 33% of women who are raped contemplate suicide, 13% of women who are raped attempt suicide and approximately 70% of rape or sexual assault victims experience moderate to severe distress, a larger percentage than for any other violent crime. Unfortunately, the effects of sexual assault extend beyond the impact to the victim. People who have been sexually assaulted are more likely to use drugs than the general public Specifically, survivors are 3.4 times more likely to use marijuana, 6 times more likely to use cocaine and 10 times more likely to use other major drugs. According to a study by the CDC, the lifetime economic burden of rape per victim is $122,461.

From 2007 to 2017, there were 812 calls human trafficking calls in Arkansas, leading to 203 cases filed. This year alone, at least 145 calls, leading to 42 cases of human trafficking. Thus, the number of Arkansas human trafficking cases being reported in on the increase.

On September 13, 2017, the National Census of Domestic Violence Services conducted a study during a 24-hour survey period. The census collected information from 27 programs in Arkansas. During this period, 212 Hotline Calls were answered, averaging 9 calls an hour. Survivors made 150 requests for services, including shelter, transportation, childcare, legal representation, and more鈥攖hat could not be provided because programs lacked the resources to meet the survivor鈥檚 needs. The census also found out that in the past year, 7 local programs in Arkansas laid off or did not fill 10 staff positions. 40% of these positions were direct service providers, such as shelter staff or advocates. By losing these positions, there were fewer advocates to answer calls or provide services. 23% of DV survivors attempt suicide.

ACASA is a statewide coalition of individuals and organizations working together toward the elimination of sexual violence and advocating for sexual assault victims鈥� rights and services. ACASA provides cohesion, vision and resources to members, while working to change public attitudes and beliefs surrounding sexual violence issues. They envision a world free of sexual violence in which men and women together assure that all human beings are treated with dignity and respect for their physical, emotional, intellectual and spiritual integrity. Through collaborative action, the Arkansas Coalition Against Sexual Assault advocates for the rights and needs of persons affected by all forms of sexual violence.

ACASA coordinates with the Arkansas Commission of Child Abuse, Rape, and Domestic Violence and 26 other organizations, including representatives from Arkansas Coalition Against Domestic Violence, Arkansas Children鈥檚 Hospital, the Department of Health, the state police, and the Department of Corrections, to work to find solutions in addressing issues related to serving victims in a trauma informed, victim centered way.

The post Sexual Assault and Human Trafficking in Arkansas appeared first on The Arkansas Journal of Social Change and Public Service.

The following post summarizes Professor Oliver’s presentation at the Journal’s Seventh Annual Spring Symposium in April 2019.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

I applaud the members of the 2018-19 Editorial Board of the Arkansas Journal of Social Change and Public Service (Journal) at the Bowen School of Law for selecting the subject of mental health as the focus of the Journal鈥檚 Seventh Annual Spring Symposium in 2019.  The topic of mental health is an important public health issue that the United States has faced for decades, and, regrettably, will probably continue to face for many years to come.  Thus, it is very appropriate for the Journal to select this topic in furtherance of its mission of creating public awareness about important issues related to social change.  I am honored to have been asked to write this essay and present at the Symposium.

Mental illnesses are common in the United States and they are increasing at a disturbing rate.  According to The National Institute of Mental Health (NIMH), in 2017 46.6 million adults aged 18 and older (nearly one in five adults, or 18.9% of all adults living in the United States) had a mental illness.  The NIMH states that mental illnesses include a variety of conditions that manifest themselves in differing degrees of severity, ranging from mild to moderate to severe.  The NIMH classifies this spectrum of illnesses into two broad categories: Any Mental Illness (AMI), which encompasses all recognized mental illnesses, and Serious Mental Illness (SMI), which represents a smaller and more severe type of AMI.     AMI is defined as mental, behavioral, or emotional disorder, and varies in its degree of impact 鈥� from no impairment to mild, moderate, and often severe impairment.  The statistics given above relate to individuals with AMI.  SMI is defined as a 鈥渕ental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities.  The burden of mental illnesses is particularly concentrated among those who experience disability due to SMI.鈥�  Id.  In 2017, an estimated 11.2 million adults aged 18 and older had an SMI, which represented 4.5% of all adults living in the United States.  Id.

These millions of individuals who have a mental illness (AMI or SMI) are individuals who try to carry on with their lives and responsibilities as best they can, and who have dreams and hopes like all of us.  They are people who want to hold jobs, go to the movies, go out to dinner, go to a park or museum, live in housing of their choice, and, in general, engage in the same activities in which everyone else engages.  To ensure that these individuals with a mental illness (and other disabilities) are not discriminated against in any of these settings, and that they are given as equal access to services, programs, and activities as is reasonably possible, since the early 1970s Congress has enacted a number of important statutes that seek to protect individuals with disabilities, including those with a mental illness.  This essay provides an overview of such statutes.

The federal statute that is considered to be the most important in prohibiting discrimination against individuals with disabilities (including mental illness) is the Americans with Disabilities Act of 1990 (ADA), and its important amendment in 2008, through the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The ADA prohibits discrimination on the basis of a disability in employment (Title I); state and local services, programs, and activities (Title II); public accommodations (private businesses that open their doors to the public and whose operations affect interstate commerce) (Title III); transportation, and communications.  See U. S. Department of Justice, A Guide to Disability Rights Laws 2, July 2009, (hereinafter Guide).  Titles I to III of the ADA are the most relevant for purposes of this discussion.  The ADA imposes a three-part mandate on entities that must comply with its provisions.  They must (1) not discriminate against individuals with disabilities, (2) they must provide reasonable accommodations to qualified individuals with disabilities, and (3) they must not segregate individuals with disabilities, and must permit them to participate in the most integrated manner possible.

The ADA is considered to be the most sweeping piece of civil rights legislation since the Civil Rights Act of 1964 because of its broad application to the private and public sectors.  The ADA was modeled after The Rehabilitation Act of 1973, which also prohibits discrimination on the basis of disability and requires the provision of reasonable accommodations.  However, because its application is limited to programs conducted by federal agencies, programs receiving federal financial assistance, federal employment, and employment practices of federal contractors, the enactment of the ADA was necessary to extend the non-discrimination/reasonable accommodations mandate to the private and public sectors that were not subject to the provisions of the Rehabilitation Act of 1973.

ADA Title I 鈥� Employment requires employers of fifteen employees or more to provide qualified individuals with disabilities an equal opportunity to benefit from all employment-related opportunities available to others (for example, recruitment, hiring, promotions, training, pay, social activities).

A 鈥渜ualified individual with a disability鈥� is one who can perform the essential functions of the job he/she seeks or holds with or without reasonable accommodations.  Consideration is given to the employer鈥檚 determination of what are the 鈥渆ssential functions of the job.鈥�  The accommodations that an employer is obligated to provide to an applicant or employee with a disability must be 鈥渞easonable,鈥� which means that they must not be too expensive or too disruptive operationally or administratively.  The obligation to provide reasonable accommodations (modifications or adjustments) applies to the job application process, the work environment, to permit the employee with a disability to enjoy equal benefits and privileges of employment, and to making existing facilities used by the employee with a disability readily accessible and usable.  Thus, to be entitled to protection, an individual must have a disability (the importance of the definition of 鈥渄isability鈥� after the enactment of the ADAAA is discussed below) and must be able to perform the essential functions of the job with or without reasonable accommodations.

In addition, to be a 鈥渜ualified individual with a disability,鈥� the individual must not pose a 鈥渄irect threat鈥� to the health and safety of other individuals in the workplace, and/or to himself/herself.  A 鈥渄irect threat鈥� is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.  To determine whether an employee with a disability poses a 鈥渄irect threat, an individualized assessment of the individual鈥檚 present ability to safely perform the essential functions of the job must be made.

Finally, if an employer requires employment qualifying criteria that screen out or tend to screen out applicants or employees with a disability, and an applicant or employee is therefore not a 鈥渜ualified individual with a disability,鈥� the employer will prevail if it can show that the disqualifying requirement is 鈥渏ob-related and consistent with business necessity,鈥� and that such requirement cannot be met by the applicant/employee by providing a reasonable accommodation.

ADA Title II 鈥� State and Local Government Services, Programs, and Activities applies to all services, programs, and activities provided or made available by 鈥減ublic entities,鈥� defined as state and local governments or any department, agency, special purpose district, or other instrumentality of a state or states or local government.  The provisions of Title II apply regardless of the government鈥檚 size or receipt of federal funds.  It requires that individuals with disabilities be given equal opportunity to benefit from all of their programs, services and activities, such as public education; employment; transportation; recreation; health care; social services; voting; including programs, services, and activities while individuals with disabilities are incarcerated.

The obligation to reasonably accommodate an individual with a disability also applies to public entities.  They must make reasonable modifications of policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

Public entities must not impose eligibility or qualifying criteria that screen out or tend to screen out individuals with disabilities, unless such criteria can be shown to be necessary for the provision of the services, program or activity being offered.  See Guide, supra, at 3-4.

ADA Title III 鈥� Public Accommodations applies to businesses and non-profit service providers that are privately owned, leased, leased to, or operated that offer services to the public.  Restaurants, doctors鈥� offices, homeless shelters, retail stores, movie theaters, and hotels are examples of entities to which Title III applies.

The obligation to reasonably modify policies, practices, and procedures to accommodate individuals with disabilities also applies to public accommodations  when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can establish that making those modifications would fundamentally alter the nature of the goods, services, facilities, etc.  See Guide, supra, at 5-6.

Definition of 鈥淒isability鈥�

The dual mandate of non-discrimination and reasonable accommodations of the ADA protects individuals with disabilities who can meet any of the three prongs of the definition of 鈥渁 person with a disability鈥�:

1. One who has a physical or mental impairment that substantially limits one or more major life activities;
2. One who has a record of such an impairment; or
3. One who is regarded as having such an impairment.

The regulations for Titles I, II, and III generally define a mental or psychological disorder to include an intellectual disability (formerly referred to as mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.  See, e.g., 29 C.F.R. 搂 1630.2(h)(2). See also Ruth Colker, Federal Disability Law in a Nutshell 22 (West Academic Publg. 2019).

The ADAAA鈥檚 impact has been very significant in the definition of the term 鈥渄isability.鈥�  Congress enacted the ADAAA to restore the original intent and protections of the ADA and to restate the definition of the term 鈥渄isability,鈥� after the United States Supreme Court issued landmark decisions between 1992 and 2002 that narrowly interpreted the term 鈥渄isability.鈥�  In those cases, plaintiffs with disabilities did not prevail because they were found to not have impairments that 鈥渟ubstantially limited鈥� them in 鈥渙ne or more major life activities.鈥�  In the ADAAA, therefore, Congress stressed that the definition of 鈥渄isability鈥� was to be construed in favor of broad coverage of individuals with disabilities, to the maximum extent permitted by the terms of the ADAAA.  Michael L. Perlin et al., MENTAL DISABILITY LAW CASES AND MATERIALS 688 (Carolina Academic Press 2017).

Of particular significance to individuals with mental illnesses are the ADAAA changes to the definition of the terms 鈥渕ajor life activities鈥� and 鈥渟ubstantially limits.鈥�  Post-ADAAA, the term 鈥渕ajor life activities鈥� includes major bodily functions, such as neurological and brain functions.  The term 鈥渟ubstantially limits鈥� has been amended to state that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.  Therefore, the term 鈥渄isability鈥� includes an impairment that is episodic or in remission, if it would substantially limit a major life activity when active.  Id., at 690.  The regulations promulgated by the Equal Employment Opportunity Commission interpreting the ADAAA state that among the disorders that post-ADAAA should be easily concluded to substantially limit brain function are disorders such as major depressive disorder and bipolar disorder.  29 C.F.R. 搂 1630.2(j)(3)(iii).  In addition, the regulations state that psychiatric problems that are episodic or are in remission now qualify as disability, if the psychiatric problems substantially limit a major life activity when active.  Id., (1)(vii).  See Margaret E. Vroman, Mentally Disabled Employees and the ADAAA: What鈥檚 An Employer to Do?, 16 Quinnipac Health L.J. 149 (2012-13), reprinted in Michael L. Perlin et al., MENTAL DISABILITY LAW CASES AND MATERIALS 692 (Carolina Academic Press 2017).

The mental and psychological impairments are now listed in the 鈥減redictable assessments鈥� regulation, such as intellectual disability, major depressive disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.  While this change reasonably can be anticipated to result in more conditions being considered to be 鈥渄isabilities,鈥� it is important to understand that, to be considered 鈥渄isabled,鈥� individuals with mental illness must establish that the impairment substantially limits one or more of their major life activities.  Colker, supra.

It is also important to note the qualifier included in 29 C.F.R. 搂 1630.2(j)(1)(vii): 鈥渋f the psychiatric problems substantially limit a major life activity when active.鈥�  While the ADAAA requires that the term 鈥渟ubstantially limits鈥� be interpreted broadly, to be protected by the ADA and ADAAA, an individual with a mental illness must still show that he/she is substantially limited in a major life activity.  This is also the language used by the NIMH to describe a 鈥渟erious mental illness鈥� or 鈥淪MI,鈥� as stated at the beginning of this essay.  Whether this means that only individuals with an 鈥淪MI鈥� should expect to be protected, and that individuals with an 鈥淎MI鈥� should not, is an issue being addressed by federal courts interpreting the ADAAA.

The ADAAA also made two other important changes in the definition of 鈥渄isability.鈥�  First, the ameliorative effects of mitigating measures are not to be considered in determining whether an individual has a disability.  For individuals with mental illness, this means that medications, reasonable accommodations, or learned behavioral or adaptive neurological modifications are not be considered in determining whether those individuals have a 鈥渄isability鈥� that is protected by the ADA and ADAAA.  Perlin, supra at 690-91.  Second, it is now easier for plaintiffs to meet the third prong of the definition of 鈥渄isability鈥� 鈥� being 鈥渞egarded as鈥� having a disability.  Post-ADAAA, an individual will able to argue that he/she was regarded as having such a disability by establishing that he/she has been subjected to an action prohibited by the ADA/ADAAA because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.  Id., at 690.

The ADA and the ADAAA, indeed, are the most important federal acts that protect individuals with disabilities, but other important federal statutes also prohibit discrimination of individuals with disabilities in a variety of other settings.  For example, the Fair Housing Act Amendments Act of 1988 prohibit discrimination in housing on the basis of disability.  Its coverage includes private housing, housing that receives federal funding, and state and local government housing.  It also prohibits discrimination in any aspect of selling or renting housing, or the denial of a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence.  It also prohibits discrimination in housing-related activities, such as financing, zoning practices, design of new construction, and advertising.

Owners of housing facilities must make reasonable exceptions of their policies in order to afford individuals with disabilities equal housing opportunities.  An example of a reasonable exception is to waive the 鈥渘o pet鈥� policy to permit individuals with disabilities who have a service animal or an emotional support animal in the residence.   Landlords must also make reasonable access-related modifications of private living as well as common use spaces.  Guide, supra, at 7.

The Air Carriers Access Act of 1986 prohibits discrimination in air transportation by domestic and foreign air carriers against individuals with physical and mental impairments.  Air carriers that provide regularly scheduled flights to the public must provide reasonable accommodations and assistance in seat reservations, boarding the aircraft, and other aspects of air travel.  Id., at 8.

The Fair Housing Act Amendments Act of 1988 and the Air Carrier Access Act of 1986 define 鈥渄isability鈥� the same way the Rehabilitation Act of 1973 defines it, and the same definition was incorporated into the ADA.

The Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) 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 individuals with psychiatric or developmental disabilities.  Its goal and purpose are to permit the U.S. Attorney General to investigate, uncover, and correct institutional and widespread problems that seriously jeopardize the health and safety of institutionalized residents.   The U.S. Attorney General may file civil law suits in cases in which reasonable cause to believe exists that conditions are 鈥渆gregious and flagrant,鈥� that are subjecting residents to 鈥済rievous harm,鈥� and which are part of a 鈥減attern or practice鈥� of resistance to residents鈥� full enjoyment of constitutional or federal rights under Title II of the ADA and Section 504 of the Rehabilitation Act.

CRIPA does not authorize the U.S. Attorney General to investigate individual, isolated incidents or to represent individual persons who are institutionalized.  Id., at 9-10.

The Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PAIMI Act) was enacted by Congress because of its concern for the prevalence of abuse and neglect among individuals with mental illness.  The PAIMI Act (and the Developmental Disabilities Assistance and Bill of Rights Act of 1975) authorized the protection and advocacy systems throughout the United States to pursue legal, administrative, and other remedies to protect the rights of individuals with mental illness (and intellectual and developmental disabilities).  In 2000 Congress amended and expanded the PAIMI Act to give protection and advocacy systems in the United States the authority to investigate possible abuse and neglect in the community, including facilities, such as schools that provide services to individuals with mental illness.  In July 2015, the Department of Justice (DOJ) published a statement explaining that Congress expanded the PAIMI Act to fully protect individuals with mental illness, including the estimated (at that time) 13.3 percent of school-age children nationwide receiving treatment for a serious mental, behavioral, or emotional disorders.   The DOJ鈥檚 statement indicated that researchers had identified schools as a critical place for screening and support services for children with mental health disabilities.  As a result, the national network of protection and advocacy entities has a significant role in ensuring compliance with the PAIMI Act and the ADA.  Protection and Advocacy for Individuals with Mental Illness 鈥� OPA, …

The Protection and Advocacy agency in Arkansas is Disability Rights Arkansas,

The Individuals with Disabilities Education Act of 1990 (IDEA) requires schools to provide special education and related services to eligible students whose school performance is adversely affected by one of thirteen conditions identified in the statute.  For purposes of this essay, one of those conditions is relevant to children with mental health issues: Emotional Disturbance.  鈥淓motional disturbance鈥� is defined as a condition exhibiting one or more of a list of characteristics over a long period of time, and to a marked degree, that adversely affects a child鈥檚 educational performance.  34 C.F.R. 搂 300.8(c)(4).  The term 鈥渆motional disturbance鈥� can encompass a number of mental disorders, which may include anxiety disorder, schizophrenia, bipolar disorder, obsessive-compulsive disorder, and depression.  13 Conditions Covered Under IDEA, …; see also generally, High Anxiety: Mental Health Issues and the IDEA, Presented to the New Hampshire Association of Special Education Administrators, Mar. 12, 2015, by Wadleigh, Starr & Peters, P.L.L.C,

Society鈥檚 perception, understanding, and acceptance of individuals with disabilities, including those with mental illnesses, have improved over the last five decades, and this change in social values has become the national policy reflected in the important federal legislation discussed here.  However, as a society, we must continue to advocate for the rights of individuals with mental illness and other disabilities.   We have come a long way, but we still have a long way to go.  We must continue to work hard so that individuals with mental illnesses and other disabilities are recognized for what they are: Human beings who have feelings, dreams, and hopes like anyone else, and who are valuable and contributing members of society.  We must open our doors to them and treat them with respect and dignity, not because the law requires it, but because that is the right thing to do.

The post Overview of Major Federal Laws that Protect Individuals with Mental Illness from Discrimination appeared first on The Arkansas Journal of Social Change and Public Service.

Many of us from early on have been taught we need to have a higher standard for those that we elect to be in charge of us. From scandals surrounding President Clinton, to claims of incompetence associated with President Bush, many of our recent leaders have raised some questions about our choices. Should there be an extra set of guidelines in place for those elected to lead? And what about those who are appointed by our elected leaders?

One of the topics covered by the Multistate Professional Responsibility Exam is Judicial Ethics. While the American Bar Association has promulgated Model Rules of Professional Conduct, each state has its own rules that judges must follow. Federal Judges, with 9 exceptions, are bound by the Code of Conduct for United States Judges. . The 9 exceptions are those judges that sit on the Supreme Court of the United States. In fact, there are no ethical rules in place, other than the constitutional provision stating that Supreme Court Justices must exhibit 鈥済ood behavior,鈥� and that they may be impeached and removed for 鈥渢reason, bribery, or other high crimes and misdemeanors.鈥� .

In fact, in 2011, Chief Justice Roberts wrote that Congress did not have the power to impose conduct rules on those justices on the Supreme Court, because the Constitution, not Congress, created the Supreme Court, so it  is bound only by the constitutional constraints and restrictions. He believed that it was good to consult the Code but that compliance was voluntary for himself and the other justices.

That is not to say that the Justices have no laws that they must follow. There is a federal financial that they must follow, and they must follow the same general principles regarding as other federal judges. Only difference is there is no remedy when a Supreme Court Justices do not remove themselves from a case. The normal remedy for when a judge does not recuse him or herself is an appeal to a higher court. Justice Breyer on this quandary, saying that when he cannot decide whether he should participate in a case, he calls a legal ethics professor, but that at the same time he feels a 鈥渄uty to sit,鈥� regardless of his feelings.

The Supreme Court has in the past imposed ethics rules upon itself. In 1993, seven justices signed an ethics policy called the 鈥�,鈥� but only two of those justices are still on the Court. Through the statement, the justices pledged to recuse themselves from cases involving legal firms where their relatives worked. . The two that remain on the court are Justices Ginsburg and Thomas, which means that the other seven sitting justices have not publicly bound themselves to this ethical policy.

Yet despite there being no set rules for the Supreme Court, only one justice has ever been impeached. Justice Samuel Chase was impeached in 1804 by the House on grounds that he allowed his partisan leaning to affect his court decisions but was acquitted by the Senate. He was never removed from his seat on the Court. . This means that no member of the Supreme Court has ever successfully been impeached and removed from the bench, and the only and last attempt was against one of the signers of the Declaration of Independence.

This was seen as unofficial precedent set by the legislature. As Chief Justice Rehnquist lays out in his book, 鈥�,鈥� several senators declined to convict Justice Chase because they believed that judicial performance was not a ground for removal and that there must be a legal or ethical violation to justify removal. However, as there are no real ethical constraints on Supreme Court Justices,  the only means for impeachment and removal of a sitting member of the Court is a legal violation, which would be those that the Constitution calls 鈥渉igh crimes.鈥� In the time that the Constitution was written, 鈥渉igh crimes鈥� meant crimes that could not be committed by ordinary persons, but by someone in a unique position of authority. .

Following that original interpretation would mean that there are very few laws that a justice of the Supreme Court could break that could lead to impeachment, almost as if the justices are above the law.

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The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

The Arkansas Constitution uses language to the U.S. Constitution鈥檚 to prohibit unreasonable searches and seizures. Despite similarities in verbiage, Arkansas is free to find in its own constitution than the U.S. Supreme Court has found in the U.S. Constitution. Under the , a home or vehicle occupant鈥檚 consent is valid if it is voluntary under . In Arkansas, consent searches of dwellings require more than voluntary consent. Arkansas鈥� Supreme Court that officers must advise occupants of a dwelling that they can refuse to give police consent to search. The Arkansas Supreme Court also the Arkansas Rules of Criminal Procedure . For vehicle searches, Arkansas follows the federal rule and only requires voluntary consent under all of the circumstances. Arkansas鈥檚 Supreme Court has to extend additional protection to vehicle consent searches. This brief analysis suggests that Arkansas ought to revisit vehicle searches through a ballot initiative that would give greater protections to vehicle occupants. To do so, Arkansas can take valuable lessons from an effort to expand protections for vehicle searches in Colorado.

Responding to concerns about the role of , lawmakers in Colorado in 2010 that seemed to require an advisement on the right to refuse a consent search. In its , the bill applied to searches of homes, vehicles, and persons. The bill was pared down to apply only to searches of vehicles and persons. That did not defeat the bill鈥檚 main purpose since a driver exposed to public view is more likely than a home occupant to be singled out due to race. In its , the law provided that an 鈥渙fficer may conduct a consensual search only after articulating the following factors,鈥� which included an advisement on the right to refuse to consent to the search (emphasis added). Curiously, the law also provided that failure to comply with the law would be considered 鈥渁s a factor in determining the voluntariness of the consent.鈥� The latter provision suggested that 鈥渁rticulating the factors鈥� would be only one factor itself in whether a search was voluntary. Colorado鈥檚 Supreme Court confirmed this paradox in 2013 when it that failure to advise on the right to refuse a consent search is only one factor in determining whether consent was voluntary. Thus, a law that held so much promise for expanding civil liberties became little more than a suggestion on how police ought to behave.

Summaries from the Colorado and Judiciary Committees show that proponents of the law were acting largely to prevent racial bias in policing. Opponents of the bill were concerned that advising citizens of their right to refuse a consent search would prevent police from catching criminals. Proponents of the bill , though, that failure by police to give the advisement on the right to refuse consent would not always be grounds for suppressing evidence found in the search (at 88:07). This concession, probably intended to assuage the fears of some moderates, seems to have paved the way for the Colorado Supreme Court to hold that the law imposed no categorical requirements on police.

Colorado鈥檚 attempt to expand protections against coercive consent searches contains important lessons. First, public support or disapproval should decide whether civil liberties are expanded. The Colorado law apparently began as a grassroots effort by concerned citizens, but citizens did not exercise their right to an . If citizens pushed the issue as a ballot initiative, it would have succeeded or failed as presented on the ballot.

Second, resisting the political instinct to compromise can be crucial to achieving meaningful change. Much of the business of state legislatures has to be centered on compromise, but compromise is not appropriate when clarity on civil liberties is at stake. Compromise in this case led to disappointment for citizens and the public servants who fought for the law鈥檚 passage. At best, the compromise left civil liberties as they were before the law鈥檚 passage; at worst, the law may give motorists a false sense of security.

Arkansans can heed both lessons by organizing a strong push for a . It is not clear whether a majority of Arkansans wish to see such an expansion of civil liberties, so the question ought to be brought to the people to decide. It is true that various groups may bargain to determine the language of the ballot initiative and the language may not survive , but any result from a transparent public process would be easier to accept than a badly drafted legislative compromise.

Fully drafting such a measure is beyond the scope of this analysis; also, this analysis takes no position on whether it would be better to seek a statutory or constitutional change. However, Arkansans should consider two important points. adopted the position that police cannot ask for consent to search unless they first have or . This requirement would mean that police can no longer request consent out of mere curiosity. Short of this, the law could provide for a rebuttable presumption that a request for consent implies a lack of reasonable suspicion or probable cause. Either of these provisions would help to make the law clear to help stave off judicial nullification. It may be that Arkansans do not want greater protection during traffic stops, but the issue should be for citizens to decide.

The post Vehicle Searches By Consent: What Police Should Tell You, and Lessons in Changing the Law appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

If you ask the average worker what their favorite song is on a Monday morning, you鈥檒l probably hear at least one person tell you that theirs is Loverboy鈥檚 鈥淲orking for the Weekend.鈥� However, this catchy 80鈥檚 tune might not have topped the charts in America if it weren鈥檛 for labor unions.

Merriam-Webster defines 鈥渓abor unions鈥� as 鈥渁n organization of workers formed for the purpose of advancing its members’ interests in respect to wages, benefits, and working conditions.鈥� () While this is an accurate definition, it leaves out the rich history of the American union, and what these groups have done for employees.

The notion of an eight-hour workday was first introduced more than 150 years ago, in 1866, when an organization called the National Labor Union asked Congress to pass a law that would mandate all employers to follow eight-hour work days. Unfortunately, this push ultimately failed. However, it was only one year later when the Illinois Legislature passed their own version of the law, which was met with strife from employers. The movement that workers deserved a reasonable workweek was already in motion, as the public sector was granted stable wages and an eight-hour workday by President Grant in 1869, and the following decades featured other organizations that fought for the same rights. In 1926, Ford Motor Company adopted a five-day, 40-hour workweek, more than ten years before the Fair Labor Standards Act would be passed. ()

Of course, labor unions have done more than just help guarantee reasonable working hours; labor unions have helped lower income inequality amongst Americans. In fact, the point in our history when income inequality was the lowest was also the point in which most Americans belonged to a union. ()  One study of surveys on union membership and income spanning the 1930s up until today showed that workers who belong to a union have consistently made 20 percent more than their non-union counterparts. That鈥檚 not to say that non-union workers haven鈥檛 benefited from unions 鈥� outside of unionized industries, income inequality was still low in these areas when unions were popular among workers. ()

Pay and time spent working are just two of the many examples demonstrating how unions have shaped our nation. Unions have helped put an end to child labor, along with having a hand in pushing for employer-provided insurance and the Family Medical Leave Act. ()

And yet, despite how unions have benefitted the workplace, Americans today don鈥檛 typically hold unions in the highest regard. Approval of unions was highest throughout the 1930s to the 1950s, peaking at around 75% in the middle 1950s. This percentage slowly declined in the 70s and 80s, with approval ratings dropping to around 55% to 65%. In 2009, union approval fell to its lowest at 48%. This drop in approval coincided with the Great Recession. ()

Since this dip however, American approval of unions has been on the rise. One 2018 study asked Americans if they thought the reduction of union representation over the past 20 years has been mostly good or mostly bad for working people. The majority of American found that the reduction of union involvement has been mostly bad for workers. The researchers also looked at those views between sex, race, age, income, education, and political party affiliation. For black pollers, 65% percent found the reduction to be mostly bad. For adults under 30, 56% found the reduction to be mostly bad. The sharpest divide was found among political party, where only 34 % of Republicans found the reduction to be mostly bad, compared to 68% of Democrats. ()

While approval is on the rise, the power unions used to hold has diminished in recent years, which is evident in the 2018 Supreme Court case, Janus v. American Federation of State, County, and Municipal Employees. () Mark Janus, an Illinois state non-union employee, argued that the fee he paid to the American Federation of State, County, and Municipal Employees (AFSCME) was unconstitutional, as it violated his First Amendment rights. Janus argued the fee was a form of political advocacy that he did not agree with. AFSCME argued that it was obligated by law to represent interests from non-union employees along with union ones. If non-union members were not required to pay the fee, then AFSCME would lose a lot of its funding and still be required to support the interests of those who don鈥檛 pay for its services. In July 2018, the Supreme Court found for Janus, stating that it was unconstitutional for public sector unions to force nonunion workers to pay fees. Janus overturned 40 year precedent case Abood v. Detroit Board of Education, where the Supreme Court had found those fees to be constitutional. ()

While this ruling is a blow to union representation in America, especially for public employees, this doesn鈥檛 mean that unions have given up. Approval for unions, has continued to rise in the past decade, and unions are working harder to reach out to current and prospective members to keep people from dropping out. AFSCME itself is working towards more one-on-one conversations with members to educate them about unions and inform employees about campaigns that are aim to get workers to quit unions. State legislatures are also working with unions, with states like New York, Oregon, and Vermont creating legislation to allow employees to bring cases on the state鈥檚 behalf, and states like California and New Jersey granting public-sector unions access to new-hire information to help them with recruiting. ()

The Janus decision is still fresh, and with unions working harder than ever to keep workers interested in the organizations, it鈥檚 too soon to tell what the future may hold. It is likely that labor unions will try to continue to work towards increasing American鈥檚 perception of unions, with a goal of proving to Americans that not only do unions work, but the benefits outweigh the cost. Americans may have lost the faith for unions they held decades past, but unions will strive to prove that 鈥淲orking for the Weekend鈥� has another important lyric: Everybody needs a second chance.

The post Working for the Weekend appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

Childhood adversity, otherwise known in the research as adverse childhood experiences (ACEs), can cause developmental delays, behavioral problems, and . Childhood adversity is all around us. In fact, in Arkansas have experienced at least one ACE. And as many as children in the state have experienced three or more.

ACEs are divided into : abuse, neglect, and household dysfunction. Abuse includes physical, emotional, and sexual abuse. Neglect includes both emotional and physical neglect. Household dysfunction includes having someone in the home with mental illness, witnessing violence in the home, having a parent or caregiver abuse alcohol or drugs, having a family member or caregiver who is incarcerated, and divorce. People from all walks of life experience ACEs, but may experience ACEs at a higher rate.

Furthermore, people who have experienced trauma as children are more likely to come into contact with law enforcement and , perhaps because they are more likely to suffer from and carry out .

Communities all over the country are wrestling with how to address ACEs. has shown that an approach including both (1) direct services for children and families who are currently suffering and (2) community education on prevention are the most effective. Lawyers have a critical role to play in both direct services and community education.

Direct Services

The largest role lawyers and legal services organizations can play in the battle against ACEs is to provide that are ; for example, defending criminal defendants, settling family disputes, obtaining guardianships, or advocating for tenants in unhealthy living situations. Because trauma takes a way a person’s sense of safety and control, trauma-sensitive practice involves sharing power and allowing clients as must control as possible to show that you respect them (Dr. Edge, presentation at ACEs Summit, Sep. 25, 2018).

Legal services and medical institutions have created Medical-Legal Partnerships (MLPs) all over the country, and the main goal of MLPs is to . Social determinants of health include many of the like poverty, homelessness, and hunger. MLPs are likely already serving people who have experienced childhood adversity. They can make organizational changes to improve direct services for people who have experienced trauma, such as training staff in trauma-sensitivity, ensuring that its staff is diverse, and even building trauma-sensitivity into individual employee performance reports (Dr. Edge, presentation at ACEs Summit, Sep. 25, 2018).

Community Education

One could provide direct services forever and never solve the root cause of those problems. That is why many programs directed at alleviating ACEs include . The most obvious educators include and psychologists, who are well versed in the science behind ACEs and ways to prevent them. In a comprehensive community education plan, however, lawyers could have a role in educating the community on things like conflict resolution, what legal rights people have in certain situations like being pulled over or being a tenant, what government benefits they have access to, and how to report instances of abuse or neglect.

In addition to solving legal issues and helping with community education, lawyers could help address ACEs in other ways. As Amy Johnson from the Arkansas Access to Justice Commission said at the recent , the legal system itself can re-traumatize those who have experienced ACEs. Lawyers are in a position to not only navigate that system for clients but also to advocate for changes to the system that could benefit individuals and the community as a whole. Finally, implementing nationwide, could help young attorneys use trauma-sensitive practices when they are working directly with clients.

The post How Can Lawyers Help Communities Address Childhood Adversity? appeared first on The Arkansas Journal of Social Change and Public Service.

The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

This Election Day, we will have many significant decisions to make regarding the future of Arkansas. While races for governor, state representative, or United States Congress often dominate the headlines, ballot initiatives are quite often left to anguish on the sidelines of the political discourse. This platitude is quite unfortunate considering that such referendums are perhaps the truest reflection of the actual will of the people. Additionally, ballot initiatives nearly always have far reaching and transformative potential ramifications for voters. Issue Five is no exception.

Issue Five 鈥� officially titled 鈥淎n Act to Increase the Arkansas Minimum Wage鈥� 鈥� would increase the state minimum wage from its current level of $8.50 per hour to $9.25 per hour on January 1, 2019, then to $10 per hour on January 1, 2020, and finally to $11 per hour on January 1, . This would be one of the highest minimum wages in the entire nation, as and currently have equal minimum wages (though both states will increase their wages to $15 per hour by 2023)  and only and the currently have minimum wages that are over $11 per hour (though they too are set to raise wages over the next few years).

Support for Issue Five is surprisingly high. A September poll showed the initiative with a 60 percent support . A similar ballot measure 鈥� which raised the minimum wage from $7.25 to its current level 鈥� passed in 2014 with 66 percent of the . Why, in an overwhelming and unapologetically conservative state such as Arkansas, is support for a minimum wage increase so high?

The answer might just have something to do with a combination of old school and new school socioeconomic thinking. Indeed, I postulate that a combination of the underlying principle of and the forward-thinking views of Sen. Bernie Sanders and others like him have intermingled to create a time in America 鈥� and Arkansas 鈥� in which creating an economic system that sustains all people has finally become a concern on the minds of the average voter.

West Coast Hotel is most commonly known as the Supreme Court case that recognized the power of the states to prescribe a minimum wage. Lesser known or discussed is a portion of Justice Holmes鈥� reasoning for that decision.

鈥�The exploitation of a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage, is not only detrimental to their health and wellbeing, but casts a direct burden for their support upon the community. What these workers lose in wages, the taxpayers are called upon to pay. The cost of living must be met鈥he community is not bound to provide what is, in effect, a subsidy for unconscionable employers. The community may direct its lawmaking power to correct the abuse which springs from their [the employers] selfish disregard of the public interest.鈥�

This passage reflects quite well a side of the argument for a living wage that is not often discussed but that goes hand in hand with the overarching moral responsibility to ensure that all of our people have access to socioeconomically fruitful labor. When employers fail to pay their workers living wages, those workers must turn somewhere else 鈥� welfare, perhaps 鈥� in order to make ends meet. Welfare, of course, is funded by taxpayer dollars. Thus, allowing employers to continue paying its workers poorly is tantamount to subsidizing those very same 鈥渦nconscionable employers.鈥�  While most do not take issue with providing subsidies to those in need, it should be entirely unacceptable to facilitate a company in causing its employees to necessarily need such assistance simply due to economic efficiency or capitalistic greed.

Enter Bernie Sanders and his Stop BEZOS . This bill would place a tax on 鈥渁ny company with more than 500 employees whose workers draw means-tested social assistance benefits 鈥� Medicare, food stamps, housing aid, etc. 鈥� of $1 for every $1 worth of benefits the workers .鈥� Aimed at big corporations like Amazon and Walmart, it would take the above mentioned employers to task for their misdeeds. Unfortunately, according to many analysts, this bill would never work and would quite possibly have many unintended negative effects on those the bill aims to help. But, sometimes it鈥檚 better to take Bernie Sanders seriously than it is to take him .

Sanders knew when he proposed this bill that it would never go anywhere. But it was never meant to. It was a message bill 鈥� meant to get the attention of the public (and the unconscionable employers) and to invoke increased support for a living wage. And it just might be working. This month, Amazon pledged to raise its minimum hourly wage to at least $15 and has gone on to implement additional raises for its longer term employers, as well as certain other employee .

So how does this tie in to Issue Five? All of this fuss about the minimum wage 鈥� whether in our state or in Sen. Sander鈥檚 office 鈥� isn鈥檛 just a coincidence. It鈥檚 part of a wave that鈥檚 slowly sweeping the nation. People are finally coming around to the idea that a living wage is an integral part of society. If such a notion can find support in Arkansas, which it obviously seems to have done, then surely it will continue in its trajectory.

The post Issue 5: Lifting Arkansas Out of Poverty appeared first on The Arkansas Journal of Social Change and Public Service.