Disability Studies Quarterly
Fall 2005, Volume 25, No. 4
<www.dsq-sds.org>
Copyright 2005 by the Society
for Disability Studies


BOOK & FILM REVIEWS

Note to Readers: Although the assignment of a book by Ruth Colker on implementation of the Americans with Disabilities Act to two reviewers was inadvertent, we are pleased to publish both Prescott's and Blaser's reviews for the unique perspectives they elucidate, while agreeing on the book's merit. In addition, Blaser's review contrasts Colker's book with another, by Perry, on the same topic.

Colker, Ruth. The Disability Pendulum: The First Decade of the Americans with Disabilities Act. New York: New York University Press, 2005. xiii, 245 pgs., $45.00, Cloth 0-8147-1645-8.

Reviewed by Heather Munro Prescott, Central Connecticut State University

When the Americans with Disabilities Act was signed into law by President George H.W. Bush in 1990, disability rights activists expected that this law would fulfill their long struggle to ensure equality of opportunity and access to those with disabilities. On the contrary, says Ruth Colker in her new book, "the story of the first decade of enforcement of the ADA has been one of massive disappointment for the disability rights community" (p. xiii). Colker traces the effectiveness of the ADA, and show how and why this key piece of civil rights legislation has fallen far short of the "high hopes and aspirations" of the disabled community and their advocates (p. 1).

Throughout the book, Colker uses the metaphor of a swinging pendulum to symbolize shifting attitudes toward disability rights and the disabled. In her Introduction, Colker traces the transition from President Ronald Reagan's dismissal of democratic presidential Michael Dukakis as an "invalid" to President George H.W. Bush's enthusiastic support for the ADA. Chapter two captures "two conflicting stories" regarding the law's progress through Congress: the first describes "unprecedented bipartisan support" for the rights of individuals with disabilities; the other a "story of blatant homophobia" due to the inclusion of persons with HIV/AIDs in the disability category, with some members of Congress feeling comfortable using labels like the 'homosexual lobby' to describe the supporters of this legislation" (p. 22). Chapters three through five give a thorough analysis of the impact of the ADA, convincingly demonstrating that instead of being an economic windfall for plaintiffs with "dubious" disabilities, as some conservative critics of the law allege, very few plaintiffs have won ADA cases. Because the courts have employed a very narrow definition of disability, most plaintiffs have found themselves in a "Catch 22": those who have been fired or excluded from employment because of treatable conditions like high blood pressure or poor vision have found that the courts do not considered them to be "disabled enough" to prevail. Even the highly publicized case of Casey Martin, the disabled professional golfer who successfully sued the PGA to allow him to use a golf cart for competition, has not paved the way for other plaintiffs. This leads Colker to ask rhetorically, "does the ADA protect only those who can provide good photo opportunities for members of Congress?" (pp. 102-103).

Not necessarily, since Colker argues in her concluding chapter that the Supreme Court is largely to blame for the failure of the ADA to protect the rights of the disabled. According to Colker, the problem "lies in the Rehnquist Court's twin decisions to invalidate parts of the ADA on constitutional law grounds (Garret) while also interpreting the statute narrowly in an entirely ahistorical framework (Sutton)" (p. 201). Colker does an excellent job of situating ADA decisions within the larger context of recent battles between the Rehnquist Court and Congress over separation of powers. Rather than considering Congress as a co-equal branch of government, Colker argues that the Court has consistently "dissed Congress," leading to "a considerable transfer of power to the judiciary." The big losers in this "power grab" between Congress and the Supreme Court, concludes Colker, are individuals with disabilities (p. 212).

As a historian, I find Colker could have done a better job of capturing the historical context in which the ADA was passed and its ensuing failure to live up to its promises. For example, Colker alludes to disability activists who helped draft the legislation and lobbied Congress and the President for its passage, but their voices are absent from the narrative, as are those of plaintiffs in ADA cases. For example, we read the words of a famous defendant like Clint Eastwood, but not the lesser-known plaintiff Diane Zum Brunnen who could not enter his luxury resort.

Nevertheless, this is a fine book that deserves widespread readership. Colker demonstrates an excellent command of relevant legal scholarship, provided through hard empirical evidence to support her case. Those without a strong legal education, such as this reviewer, may find this book difficult going. It would have been helpful to have a timeline illustrating the legislative history and key relevant court decisions for quick reference. I would encourage readers to make the effort to read and comprehend this book, however difficult. It provides powerful ammunition against the Rehnquist Court's backlash against disability rights, as well as civil rights more generally. Colker hopes that "future courts will correct this injustice and resurrect the ADA and other federal civil rights statutes to their rightful respectful position in our society" (p. 212). With conservatives controlling both the executive and the legislative branches of government, this hope does not seem likely to reach fruition in the near future.


Colker, Ruth. The Disability Pendulum: The First Decade of the Americans with Disabilities Act. New York: New York University Press, 2005. 280 pages, $45.00, Hardcover, 0-8147-1645-8.

Perry, Greg M. Disabling America: The Unintended Consequences of Government's Protection of the Handicapped. Nashville, TN: World Net Daily Books, 2004. 240 pages, $22.99, Hardcover, 0-7852-6225-3.

Reviewed by Arthur Blaser, Chapman University

These two books reflect current controversy regarding disability rights issues. The books' authors are diametrically opposed in political perspective, and in their method of analyzing controversies over disability rights. Whereas Colker takes a careful, empirical approach to describing a pendulum from success for disability rights plaintiffs confronted by disability discrimination to victories for defendants, Perry takes a simplistic approach in building a case against the Americans with Disabilities Act (ADA) specifically, and disability rights in general.

Colker teaches law at Ohio State University. Some of the chapters of her book were previously the basis of law review articles, and were cited in Supreme Court briefs in cases including Spector and Lane. Colker has acted to reverse the "disability pendulum," and this book is one such effort. She combines action with an admirable job of description, and notes the ratchet effect of the disability pendulum (with occasional narrow victories for plaintiffs as in the Olmstead and Lane decisions). As expressed in the title of Colker's last chapter, this is "Dissing Congress." Many judges do what they profess not to do by making policy contrary to clearly expressed legislative intent.

In her preface, Colker specifies her intent to educate the public about the ADA's successes and failures, and hopes that "this work will be useful to the growing disability studies field" (p. xiii).

The content of Colker's book is nicely summed up in several of the chapter headings: "Introduction: High Hope Followed by Public Backlash," "The Supreme Court, the Courts of Appeals, and the States: A Swinging Pendulum," "ADA Title III: A Fragile Compromise" and "Dissing Congress."

Colker's careful use of empirical methods can serve as a valuable model. Rather than using methods to intimidate the reader, she prudently explains data that were gathered by the American Bar Association and Equal Employment Opportunity Commission. Colker uses the data to document her conclusion about predominantly pro-defendant outcomes. She then finds circumstances under which disability rights plaintiffs are more likely to be successful.

Colker's strongest criticism is for interpretation and enforcement of the ADA, rather than for the Act itself. Her term for the ADA's radical intent is "antisubordination," beyond the "antidifferentiation" of the Civil Rights Act. Colker suggests that the ADA's goal is not to neutralize disability as a factor in employment or access decisions, but to guarantee reasonable accommodations. Unlike with Civil Rights Act claims of "reverse discrimination," "reverse discrimination" claims shouldn't be possible under the ADA. This is because of the honest, open, thoroughgoing debate that's borne out in the ADA's legislative history.

Why not unqualified support for the ADA? Serious study of disability issues should make us skeptical of unqualified and unthinking support of anything, and Colker's account is true to this. Part of the rich and detailed legislative history reflected homophobia. In an account of the legislative debate leading to the ADA's enactment, Colker recalls lawmakers' worry about the "sodomy lobby." Language was inserted in the ADA to exclude sexual minorities from its protection.

Unfortunately, not even that insertion deterred a judge in the case of an individual with HIV (William Runnebaum) who was denied ADA protection by an appellate court. Despite a Supreme Court precedent (Bragdon v Abbott), the Fourth Circuit held for the defendant on the grounds that Runnebaum shouldn't be protected by the ADA, and "gratuitously" mentioned that Runnebaum was gay. (This is one of many rich anecdotes bolstering the systematic compilation of data in Colker's book.)

Greg Perry is the author of scores of computer books, an MBA from the University of Tulsa in corporate finance, former President of his fraternity, and former owner/manager of rental property. He has three fingers and one leg. In Disabling America we're told about each of these factors, presumably as evidence of Perry's credibility.

Perry combines strong opinions about disability rights with strong opinions on gun control, abortion, the United Nations, public education, Hollywood, air travel, and psychology majors. The far-ranging content of his book covers topics ranging from AIDS and homosexuality to "Dirty Harry and Dirty Lawyers." Perry's book attracted notoriety from the title (the same as Richard E. Morgan's 1984 book subtitled "The 'Rights Industry' in Our Time"), from a C-Span broadcast, and from the network of religious booksellers.

The importance of understanding arguments against the Americans with Disabilities Act, if only to build a stronger case for disability rights, is emphasized in Mary Johnson's 2003 book, Make Them Go Away: Clint Eastwood, Christopher Reeve, and the Case against Disability Rights. Perry's book was written after Johnson's, and at first cursory glance performs a service by making explicit the analysis underlying Perry's final subheading "The ADA is a Complete and Utter Failure."

Throughout the book, Perry uses "the ADA" to stand for many laws, regulations, and opinions invoked by disability rights advocates. In describing why he left the rental property business, Perry mentions requirements of strobes in smoke detectors to illustrate the overreaching of the ADA. (They were a subject of the Fair Housing Act). Although Perry shows familiarity with "visitability" ordinances later in the volume, this is inexplicably absent from his earlier discussion.

Readers examining Perry's citations will be disappointed. Perry discusses the ADA Notification Act (p. 197) without reference to its sponsor, Mark Foley. Perry discusses the United Nations without reference to the Draft Convention (pp.175-177). Perry discusses narrowing definitions of disability, without reference to the Supreme Court (pp.10-11). In one case where he does provide a reference (Kathi Wolfe's article "Bashing the Disabled: The New Hate Crime" in the Progressive), readers are told "date unknown" (p. 215), when a little work by the author or editor could find it in the November, 1995 issue beginning at page 24. No citation is given for such "facts" as Perry's claim (p. 147) that home schooling "can cost as little as 1/466th as much as a public school education." The ADA connection may not be as clear to some readers as it is to Perry.

Teachers, scholars, and advocates are aided by familiarity with the cases for and against disability rights. Colker's essays are invaluable exemplars of scholarly investigation that will aid disability scholars and activists. Perry's book is useful reading to respond to students and other community members who ask "Does anyone really think that way?" But for readers seeking critiques of the Americans with Disabilities Act, Edward Hudgins, James Bovard (cited by Perry), and Richard Epstein and Douglas Bandow (not cited) provide more lucid, though still problematic, ones.

References

Morgan, R.E. (1984). Disabling America: The 'rights industry' in our time. New York: Basic Books.

Johnson, M. (2003). Make them go away: Clint Eastwood, Christopher Reeve, and the case against disability rights. Louisville, KY: Advocado Press





Copyright (c) 2005 Heather Munro Prescott



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