Disability Studies Quarterly
Fall 2005, Volume 25, No. 4
Copyright 2005 by the Society
for Disability Studies

Disability Rights: The Overlooked Civil Rights Issue

Doris Zames Fleischer, Ph.D.
New Jersey Institute of Technology

Frieda Zames, Ph.D.
October 29,1932-June 16, 2005

Why are disability rights so frequently overlooked as a civil rights issue by scholars and the general public (Clendenin and Nagourney, 1999; Young-Bruehl, 1996, passim)? Why is there reluctance to accept disability as a form of diversity serving as reassurance of the human capacity for resourcefulness and innovation? Why is there backlash against the disability rights movement, which advanced and continues to advance the civil rights of people with disabilities? Because the disability rights movement approaches disability in a new, unfamiliar way, people may be threatened as their perception of disability tends to be through the "impairment model," rather than the "civil rights model." The former, this traditional perception, underlies the Social Security disability system in the United States with which most adults come to associate the term "disability."  This view purports that because impairment causes disability, which prevents effective functioning in the world, unless one is cured, one cannot expect equality. Therefore, as the disability rights movement, which struggles for social equality of people with disabilities, redefines "disability," the movement also challenges basic social assumptions about the nature of disability.

A statement of only forty words, Section 504 of the Rehabilitation Act of 1973 provided civil rights protection for people with disabilities in programs and activities that receive federal financial assistance. The Individuals with Disabilities Education Act (IDEA) followed in 1975, and the 1990 Americans with Disabilities Act (ADA) extended protection to the private sector. Although people with disabilities constitute one of the largest minorities in the United States, the disability population was not deemed by many economic and political forces to have much political clout. Consequently, when these disability rights laws, which charted new social policies, were passed, they met with vehement opposition from, for example, President Richard Nixon, the National Federation of Independent Business, the U.S. Chamber of Commerce, the New York Times, and the Wall Street Journal (Bell and Burgdorf, 1983; Fleischer and Zames, 2001). In this commentary, we document the fight for disability rights both in the courts and in the public sphere.

Section 504 and Public Transportation

Disability rights, which have been hard won, continue to be challenged in the courts. Section 504, the first federal civil rights law for people with disabilities, was added as the last section of the Rehabilitation Act of 1973 by a small group of congressional aides, both Democrats and Republicans (Scotch, 1984). Because disability rights were so alien to the public mindset, it took stealth action by enlightened policy-makers to initiate such rights into federal law. This stealth action, however, contributed to the public resistance that followed. Neither the people nor the courts fully understood what had been quietly wrought, and Berkowitz (1987) notes, in fact, that neither the president, nor most of the Congress, nor even disability activists knew of this addition to the Rehabilitation Act. Once these activists found out, however, they revealed their muscle as they coalesced to fight effectively for the implementing regulations (Shapiro, 1993). Section 504 is made effective only through the regulations, as they specify how recipients of federal funding are barred from discriminating against people with disabilities.

While the nationwide demonstrations by disability activists–a pivotal factor in the 1977 signing of the regulations–seemed cause for celebration, early Section 504 decisions such as Southeastern Community College v. Davis (1979) and American Public Transit Association v. Lewis (1981; DC Circuit) frustrated advocates. The Supreme Court sided with Southeastern Community College against Frances Davis, a hard-of-hearing practical nurse, ruling that the accommodations that allowed her to be a student were too difficult and too burdensome. Jim Weisman, attorney for Eastern Paralyzed Veterans Association (now United Spinal Association), predicted, immediately after the Davis decision, that the rationale in this case would be used by those who oppose accessibility for people with disabilities in transportation. Invoking the too expensive and too burdensome contention that succeeded in the Davis case, American Public Transit Association (APTA) attorneys proved Weisman right as they successfully argued that "reasonable accommodation," providing accessibility in public transit, was not feasible.

APTA attorneys further argued that accessible transit serves few people with disabilities, which is an example of circular reasoning because only if it is built to be accessible, can they come. For example, in New York City, where it is still very difficult or impossible for most wheelchair users to ride the subway, few such people do. Meanwhile, many wheelchair users in Atlanta are frequent riders on MARTA, the very accessible subway. Disability attorneys formulated a new tactic in Dopico v. Goldschmidt (1982; 2nd Circuit), which led to victories in Section 504 cases. Instead of arguing to retrofit old vehicles (such as buses) or old facilities, they contended that it was economically and practically feasible to purchase only accessible new vehicles and to require accessibility in only newly constructed or newly altered facilities. Thus they countered the arguments that cost and difficulty made accessibility for people with disabilities an unrealistic goal. Inspired by earlier defeats in Section 504 cases, this successful approach, reaffirmed in ADAPT v. Skinner (1989; 3rd Circuit), became an integral part of the ADA. Justin Dart, who is known as the father of the ADA, points out that when reference is made to the cost of accommodations, there is too little recognition of the cost of discrimination (Dart, 1997). Accommodations permit society to benefit from the talents of people with disabilities, as well as allowing such people to be not only tax users, but also taxpayers.

Disability Rights in Education

In education, failure to foster the integration of children with disabilities into general education commonly manifests in two ways. First, there is concern that money and services for non-disabled children are unwisely diverted to pay for educating children with disabilities (Howard, 1994). Second, public unwillingness to include children with special needs in general classrooms becomes increasingly evident as schools are encumbered by stricter testing standards. Regressive and detrimental measures, such as diluting standards for children with disabilities, or even excluding accountability for this population, was seriously debated in Congress (Geraghty, 2003). Despite promises made by the government to children with disabilities and their parents, the 1975 Individuals with Disabilities Education Act (IDEA)-- a law supported by all disability groups–has never been fully funded. A May 14, 2004 New York Times story revealed that almost thirty years after the passage of IDEA Congress is still not fully financing its cost to the states (Schemo). Although the federal government was slated to pay 40 percent of the cost of the IDEA by 1982, it currently pays less than 19 percent (C-SPAN, 2004). Schemo (2004) reveals that a government survey showed that "no state is fully meeting its legal obligation to provide educational services for disabled students"; Schemo further notes that states must make up the difference by raising property taxes, which fuels resentment in local communities against children with disabilities and their families (p. 23A). Moreover, other thorny problems persist such as these: a) student discipline-- that is whether students may be ejected for violations of "codes of conduct" without schools demonstrating that "the disability did not cause misbehavior, " referred to as manifest determination in IDEA; and b) lawyers' fees and due process for children with disabilities (Schemo, 2004).

Disability advocates seek to ensure that funding follows the child to his or her appropriate education venue and that schools accommodate diverse learning styles. Rather than provide incentives that inflate special education programs, the objectives of disability advocates serve not only children with disabilities, but also increase diversity in the classroom, and thus benefit non-disabled children as well as children with disabilities (Stussman, 1996). As former Assistant Secretary of Education, Judith E. Heumann points out, "In a way you can see every child as having special needs. So the ideal is a system in which every child gets an individualized education" (cited in Lewin, 1997, sec.I. p. 20). It is this assumption that drives the movement to accommodate diverse learning styles within general education. By demystifying such labels as "learning disability" or "attention deficit disorder," well-known author and pediatrician Mel Levine (2003, passim) stresses, instead, strategies to deal with the reality that we are all "wired" differently. Whatever the cost of educating children with disabilities, disability advocates ask that the public consider the cost of not educating them.

The ADA: Sovereign Immunity and Defining Disability

The civil rights protection of the 1990 ADA receives the most media attention because it is the most comprehensive federal disability rights law. That it is being chipped away is apparent in a significant number of Supreme Court decisions. The Court has narrowed the definition of disability and has elevated the "new federalism" by expanding the concept of "sovereign immunity," commonly known as "states' rights." In University of Alabama v. Garrett (2001), the Supreme Court found that there is insufficient evidence of disability discrimination to justify applying the equal protection clause of the Fourteenth Amendment. In the majority opinion, this clause, which is historically invoked to ensure civil rights for protected classes, is trumped by the sovereign immunity embodied in the Eleventh Amendment, which prevents individuals from suing states for money damages without the state's permission. Thus the merits of the case of cancer survivor, Patricia Garrett (or the joined case of Milton Ash, who has asthma), were not even considered. Dismissing Justice Stephen Breyer's citation of more than three hundred examples of disability discrimination as merely anecdotal, the Court decided that such discrimination was not so flagrant as to abrogate sovereign immunity. A similar argument, to elevate states' rights above federal law, was employed in the past to maintain racial discrimination. "Jim Crow" laws were countered by uniform federal legislation. By regressing to an earlier model that protected racial discrimination, the Court now protects disability discrimination. Some disability advocates argue that this new elevation of states' rights reveals that the recent Supreme Court is an activist Court with a radical right agenda-- a Court that is usurping the role of a coequal branch, the Congress of the United States.

The Supreme Court's near-evisceration of Title I, the employment title of the ADA, began with three joined 1999 employment cases that focused on the definition of disability: Sutton et al. v. United Air Lines, Inc.; Murphy v. United Parcel Service, Inc.; and Albertson, Inc. v. Kirkingburg. Although the Court decided that individuals whose conditions do not substantially limit any major life activity and/or are easily correctable by "mitigating devices" are not disabled according to the ADA, Justice John Paul Stevens points out in his dissent a problem with the majority opinion: "The Court's approach would seem to allow an employer to refuse to hire every person who has epilepsy or diabetes that is controlled by medication, or every person who functions efficiently with a prosthetic limb" ("Supreme Court," 1999, pp.1-2). Georgetown University Law Center's Chai Feldblum, who helped draft the ADA, notes the same problem with the Court's decisions: "These decisions create the absurd result of a person being disabled enough to be fired from a job, but not disabled enough to challenge the firing "  (Action alert regarding Supreme Court decision, 1999). Decisions based on these approaches to the ADA tend to keep people with disabilities out of the workforce. Such interpretations of the law contradict the intent of Congress, which reflects the national will to increase the economic independence of people with disabilities. Ironically, despite public reluctance to employ this population, there is also an unwillingness to allow the disability population to remain an economic burden on society.

Because the Supreme Court focuses on the definition of disability rather than on the effects of discrimination (an approach used in no other civil rights law), the Court has ended up with a tortured definition of disability. For example, the Court would never ask how dark an African-American is or how devout a Muslim is to determine whether or not an individual had been discriminated against because of race or religion. The Court does ask, however, how disabled a person is to determine whether or not there has been disability discrimination. This question, relevant to benefits law, is not applicable to civil rights law. A result of this tortured definition is that a person with asymptomatic HIV is disabled because she could pass her HIV to her offspring, so she is limited with regard to procreation (considered a major life activity by the Court), whether or not she would ever choose to have a child (Bragdon v.Abbott, 1998). While the Bragdon decision may, in some sense, have broadened the definition of "disability," Justice Stevens points out in his dissent to the Sutton (1999) decision that the Court's reliance on the "mitigating devices" argument severely narrows an overall definition, thus restricting the protection of the ADA for people who are discriminated against due to disability.

The Supreme Court further narrowed the definition of disability in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2001). The Court denied that employee Ella Williams's impairment–severe carpal tunnel syndrome and other musculo-skeletal disorders–entitled her to reasonable accommodation, thereby placing her in a "Catch 22" situation. Williams had to demonstrate an ability to perform the essential function of the job, while simultaneously showing that her condition significantly limited a major life activity. Thus, through revealing the extent of one's disability in order to be covered by the ADA, one may imperil one's employment. Berkeley law professor Linda Hamilton Krieger (2003) indicates that the Court may have responded to the "dramatic shift in the ordinary power relationships between employers and employees" inherent in the ADA (p. 3). She also emphasizes as a consequence of this shift that there is necessity for the employer to engage "with a disabled employee or applicant in a good faith interactive process to find ways to accommodate the employee's disability," so long as no "undue hardship" is imposed on the employer (p.3). Political science professor Ruth O'Brien (2001) writes, "Disabled people have been seen not only as a threat to the workplace hierarchy, but also to the principle of business rationality underlying American capitalism. This helps to explain the opposition they faced from employers and the federal courts" (p.4). In other words, employers and the courts fear the slippery slope that could compromise employers' authority to totally control the workplace. For example, could employers be required to consider the needs of employees, both disabled and non-disabled, even if some costs were involved, so long as it did not rise to the level of "undue hardship"?

Further Supreme Court Decisions on the ADA

Invoking neither the definition of disability nor sovereign immunity, the Court continues to hack away at the ADA in many other cases. Rather than address seniority as just the kind of entrenched system that the ADA is designed to address, the Court found in U.S. Airways, Inc. v. Barnett (2002) that seniority trumps the request for a reasonable accommodation. This decision gives the mistaken impression that the ADA provides people with disabilities with preferential treatment over those who are non-disabled.  This characterization confuses "reasonable accommodation" with "affirmative action." Thurgood Marshall sought to clarify the distinction in 1985 in Alexander v. Choate when he pointed out that "reasonable accommodation" eliminates obstacles against people with disabilities: it is not remedial policy for past discrimination.  It is not giving people with disabilities any advantage over non-disabled people. It merely levels the playing field.

In another example, the Court's ruling in Chevron U.S.A., Inc. v. Echazabal (2002) conflicted with disability rights attorneys who argued that the ADA allows employers to refuse to hire a person with a disability only if that individual poses a threat to others in the workplace. The Court, however, decided that employers could invoke the Equal Employment Opportunity Commission (EEOC) regulations that specify that such employers can reject qualified applicants by claiming that the job will endanger that prospective employee's health. Hence, under the guise of protection, a person with a disability may be "protected" out of his or her job. Political science professor Harlan Hahn (2003) notes that because it is deceitful and hypocritical, "paternalism can be an even more formidable obstacle in the struggle for equality for people with disabilities than direct conflict or even hostility" (p. 39). In addition to the threat of court-sanctioned paternalism, the Court decided in Barnes v. Gorman (2002), that only compensatory damages, not punitive damages, are available under Section 504 of the Rehabilitation Act of 1973 and Title II of the 1990 ADA. Thus, people with disabilities will find it increasingly difficult to seek recourse through the law as a means to deal with disability discrimination. Limited financial penalties for bias against those with disabilities can only discourage compliance with such legislation.

A final decision that reveals long-standing attitudes that discriminate against people with disabilities is Tennessee v. Lane (2004), in which only a slim majority of the Court sided with George Lane and Beverly Jones, both wheelchair-using paraplegics who alleged that they were denied access to state courts because of their disabilities. Lane was arrested when he refused to either crawl or be carried up two flights of stairs to answer criminal charges at a courthouse that had no elevator. Jones, a certified court reporter, claimed that she lost employment and the chance to take part in the judicial process because of inaccessible courthouses. Many disability advocates assumed that even this Court would accept the idea that people should be able to get to the second floor in a public building. Yet two years prior to Lane and Jones, Texas Attorney General Greg Abbott filed a class-action lawsuit in which he contended that because states cannot be required to comply with Title II's ban on discrimination against people with disabilities by state or local governments, the ADA is unconstitutional (King, 2003).  In sum, the decision in Lane and Jones is disturbingly close, 5 to 4, so Title II, the heart of the ADA, which guarantees access to government services, is still in jeopardy. In fact, Justice John Paul Stevens, who wrote for the majority in Lane and Jones, may have limited the ruling to the rather narrow sphere of courthouses and court services to secure the deciding vote of Justice Sandra Day O'Connor. With the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O'Connor--both of whom have almost consistently voted against the interests of the disability community-- the Court's future direction on disability issues remains uncertain. That Circuit Court Judge, John Roberts–who represented Toyota in the above cited case of Toyota v. Williams -- is likely (at the time of this writing) to become Chief Justice is not encouraging to the disability community.

Media and Public Attitudes

If all humankind is not only vulnerable to disability, but also likely to experience some form of disability in a lifetime, why is there a common mischaracterization of the disability population? Why is there the assumption that people with disabilities feel entitled to burden those who are non-disabled by demanding unfair special treatment such as unreasonable benefits, exorbitant settlements, and unjustifiable accommodations? The mainstream media often reflect such negative stereotypical presumptions by treating disability mainly as a medical, less often a civil rights, issue. Towson University journalism professor Beth Haller (2001) expresses concern over the tone of a series of award-winning articles about a teenager with a facial deformity who was "coping with adversity." Haller criticizes media concentration "on inspirational and one-dimensional stories of a person's life with a disability (p.1), urging journalists to "give more time to problems caused by the outside world's prejudice against [for example,the teenager's] appearance and less space to the medical issues" (p. 4).

Many people are surprised to learn that The New York Times, especially in its editorials, strongly opposed most disability rights legislation, including the ADA (Fleischer and Zames, 2001, pp. 208-209). Although more recently there has been an improvement in the approach of this paper of record toward disability, both in its editorial policy and its news coverage, the lead article in the January 23rd 2005 "Week in Review" reasserted misleading platitudes relating to disability. John Tierney (2005) writes, "The welfare roles were reduced in the 1990's, but the disability roles were swelled by workers who learned how to qualify for lifetime income supports and free medical coverage" (p. 1). Once again, people with disabilities were cast not as a population that has been struggling to get into the workforce, but rather as individuals seeking to "play the system" so as to avoid having to work. Tierney further states, "But that Medicare bill championed by Mr. Bush also contains a prescription drug benefit that was the costliest new entitlement in decades" (p. 1). Tierney fails to mention that the real recipients of this benefit are not people in need of prescription drugs, but rather pharmaceutical companies that wrote and lobbied for the bill.

In addition to featured articles, Op-Ed pieces over the years too often reflect all-too-common misconceptions regarding the ADA. To illustrate, psychiatrist Sally Satel, who teaches at Yale and frequently contributes Op-Ed pieces to The New York Times, argues in a May 10, 1997 piece that the EEOC Enforcement Guidance: ADA and Psychiatric Disability was "sending dysfunctional people the message that the world–in this case the workplace–resolves around them" (A19). Satel neglects to recognize that the Guidance is designed not to rehabilitate people with psychiatric disabilities, but rather to protect qualified people with such disabilities from the very stigmatization that she exhibits. In another example, a cartoon version of the ADA appeared in the November 27, 1998 New York Times Op-Ed piece by Walter Olson, in which he claims that the ADA protects people like Dr. Frank Ruhl Peterson, who was stealing narcotics to feed his own drug habit while continuing to practice medicine (A39). In truth, the well-crafted ADA does not protect unqualified workers, nor sanction illegal behavior. When the general public is bombarded by such distortions, why would they support the ADA?

A misperception of disability as an either/or reality, rather than as a characteristic that is experienced on a spectrum, causes people to maintain the fiction of the strictly dichotomized notion of normal versus the abnormal. People underestimate, to their peril, their unacknowledged fear of disability, which results in the avoidance of the basic issues regarding disability that confront all humankind. It is this fear that ultimately engenders the hostility and bigotry that are the real barriers to equality for people with disabilities. Since disability legislation is everyone's "insurance policy," (Ogle, 1996, p. 40), we must demystify disability and counter the mythical "us-them" dichotomy because we all need these laws.

The denial of that spectrum, which represents the truth about disability, is reminiscent of America's historical refusal to recognize another spectrum–the reality of race, that broad range of possible combinations and variations. More than one hundred years after the 1863 Emancipation Proclamation, the 1964 Civil Rights Act legally protected African Americans from the effects of the racially related fiction that had rendered them second-class citizens. It should not take over one hundred years for people with disabilities to be afforded the rights of first-class citizenship promised in the 1990 Americans with Disabilities Act.


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Copyright (c) 2005 Doris Zames Fleischer, Frieda Zames

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