Disability Law Journal

Service dogs and emotional support animals provide crucial assistance to people with disabilities in many areas of life. As the number of these assistance animals continues to grow, however, so does public suspicion about abuse of law and faking the need for such accommodations. Legislators have been directly reactive to this moral panic, and the majority of states have passed laws to combat the misrepresentation of pets as assistance animals. Consequently, people with disabilities who use service dogs feel the need to signal compliance to avoid harassment, questioning, or exclusion from spaces that do not allow pets. Taking an empirical law and psychology approach, this Article concerns itself with the possible sources of the phenomenon of misrepresentation, which I term “assistance-animal disability con.” The Article also discusses the stigmatizing consequences of the suspicion surrounding faking the need to use assistance animals for the disability community. The Article shows that 1) people with disabilities who use service dogs signal their protected status using extra-legal norms that did not originally appear in federal legislation. They use accessories that indicate legality such as vests and choose breeds of dogs that have traditionally been associated with service; 2) the public has been most trusting of these visible signs of compliance in the form of vests indicating the authenticity of a service dog; 3) in return, the legal system at the state level has adopted those extra-legal norms and translated them into black letter law through a reciprocal model of rulemaking; and 4) the psychological mechanism of “bounded ethicality”can explain people’s engagement with assistance-animal disability con. People who misrepresent their pets as assistance animals seem to not see their acts as unethical or illegal because the victims in the situation, peoplewith disabilities, remain unrecognized in these people’s eyes. Based on these original findings, this Article argues for legal reform and for the use of tools from the field of behavioral psychology to restore trust in the practice of employing assistance animals to support the needs of millions of Americans with disabilities. The suggested analysis extends beyond disability law, offering a deeper understanding of the relationship between social norms, new laws, and ethical decision-making.

The legal community has been instrumental in guaranteeing fundamental rights of self-determination for some disabled people. However, lawyers are often complicit in ableist practices—in fact, our ethical rules sometimes require it. Rule 1.14 of the Model Rules of Professional Conduct (“Model Rules”) provides that lawyers may supplement their own judgment for a disabled client’s when they think it is in their client’s interest. In Britney Spears’s case, her former attorney repeatedly undermined her attempts to end her conservatorship, likely based on his mistaken belief that doing so would not be in the singer’s best interest. Indeed, her attorney did not even inform her that ending her conservatorship was an option.

This paper considers the ethical obligations of attorneys when interacting with disabled clients, arguing that the Model Rules should be altered to reflect the idea of “support-based” legal capacity embedded in the United Nations Convention on the Rights of Persons with Disabilities and becoming popularized within the disability community. Support-based models prioritize the expressed preferences of disabled people.

Section II contextualizes this discussion within broader conversations about capacity and human rights law. Section III compares the Model Rules with the standards set out by the UN Convention on the Rights of Persons with Disabilities. Section IV discusses the practical implications of these differences through two hypotheticals. This paper concludes by proposing a new Model Rule 1.14 to bring the Model Rules in line with international human rights law and the needs of the disability community.

Up to 85 percent of youth in prison have a qualifying disability under the Individuals with Disabilities Education Act (“IDEA”). Yet only onethird receive some form of special education services in prison, and the services provided are inadequate. The failure of prisons to comply with the IDEA is due to the carceral system’s inherent institutional and restrictive nature, which makes it impossible to comply with the IDEA’s requirements for individualization and inclusion. As a solution, this Note suggests Congress should amend the IDEA to (1) remove the loopholes that have made prisons a purportedly appropriate setting for special education and (2) extend the IDEA’s child assessment and manifestation determination requirements to criminal and delinquency proceedings. This solution would ensure that no youth with disabilities are sent to prison where they cannot receive the mandated services they need, and instead ensure they receive these services in the least restrictive environment along a continuum of non-prison alternative placements. This solution also addresses the racial and ableist biases that have contributed to the over-representation of youth with disabilities, particularly Black youth with disabilities, in prisons. Given that the vast majority of incarcerated youth have disabilities, a proscription on sending youth with disabilities to prison and the creation of alternative placements would decrease the overall youth population in prison, which could reduce and potentially eliminate the need for prisons entirely.

Eligibility for Supplemental Security Income and Medicaid is essential for individuals with physical, developmental, intellectual, and other disabilities because it provides access to habilitative care. Habilitative care provides services necessary to maintain a base-level quality of life and facilitates independent living. Some of the benefits provided to disabled individuals through habilitative care are in-home assistance, job support, and adaptive equipment. Unfortunately, for many disabled individuals, the choice of marriage disqualifies them from receiving the benefits they need to live independently with in-home assistance and support. This disqualification from governmental services is referred to as “the marriage penalty.” This marriage penalty forces many disabled individuals to either opt out of marriage or lose their benefits. This limitation can be changed. This note will suggest the exclusion of spousal income for determination of services, passing the SSI Restoration Act, discontinuing the couple rate, assessing individual income, and enacting uniform definitions of “disability”and “habilitative care” to apply in every state which will all help in giving disabled individuals an equal choice when considering marriage.