Disabilities and Behavioral Disorders

By Nathaniel Counts

The Americans with Disabilities Act of 1990 (ADA) and related statutes and regulations creates a cause of action that allows children and young adults with disabilities to be able to participate equally in public schools and universities.  “Disability” can include behavioral and other mental health disorders, such as depression, anxiety disorder, obsessive-compulsive disorder, phobias, or conduct disorder, to the extent that it interferes with the child’s ability to thrive at school.  Over the period of any individual’s school-going career, quite a few people might be considered disabled under the law.

Actual prevalence of behavioral disorders is of course very difficult to measure, but the prevalence in young children for serious emotional disturbances, behavioral disorders that substantially impair a child’s ability to participate in school, has been most frequently estimated at between 10% and 20% as of 2006, and the prevalence for behavioral disorders that do not rise to the level of serious emotional disturbances is likely somewhat higher.  For college students in 2012, one study found that about 30% of students reported feeling so depressed within the past 12 months that it was difficult to function and about 20% of the students reported being diagnosed or receiving treatment for some type of mental health disorder within the past 12 months.  Even given these limited statistics, it is evident that a significant percentage of the population is currently affected by, or will be affected at some point in their lifetime by, a behavioral disorder and that a sizable proportion of these individuals would likely benefit from some form of services or accommodation in their schooling.

The prevalence of behavioral disorders begs the question: what if the majority of the population experiences some form of behavioral disorder?

Does it make any sense to treat behavioral health issues as a disability, when only a minority of the population would be considered abled?  Perhaps it makes sense if one believes the government should maintain an optimistic view of public health and any deficit below the maximum in any aspect of health should be considered a disability of sorts, and then lines are drawn based on resource availability to determine when services begin.

A knee-jerk reaction would be to say that a high prevalence indicates that behavioral disorders should not be considered disabilities at all.  The fact that behavioral disorders will affect such a large percentage of the population means that social maladaptation is a part of life that everyone must deal with.  There is no pressing need for the government to intervene and the categorization as a disability was a result of overzealousness on the part of psychiatrists.

More reasonably, a prevalence that leaves the majority of the population disabled indicates that a disability rights framework is not most appropriate.  In a disability rights framework, the burden shifts to the individual to enforce the right.  Where the disorder affects a substantial proportion of the population, it may make less sense to promote the specific and piecemeal remedies that disability litigation provides when most of the population would enjoy the benefit of accommodation (and since most of the population is very unlikely to seek treatment for behavioral disorder).  It may be the case that a more systematic reform of core public educational services would be more appropriate for improving equal access and participation of educational services for individuals with behavioral disorders.

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Nathaniel Counts was a Student Fellow during the 2013-2014 academic year. At the time, he was in his third year at Harvard Law School. He was interested in the role of law and lawyers in the treatment of mental health issues, with a focus on behavioral disorders, including intersections with the criminal justice system. He was also interested in the use of a right to health care in human rights lawyering and international development. Nathaniel graduated from Johns Hopkins with a major in biology and a minor in entrepreneurship and management. Prior to law school, he studied creative writing at Bar-Ilan University in Israel. His past research focused on the federal government’s response to marijuana legalization, including recommendations for public health initiatives; he published an article on this subject in the Gonzaga Law Review in 2014.

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