The two works reviewed reflect an encouraging trend in disability studies scholarship: critical grappling with multiple, sometimes contradictory aspects of social and political issues. These books take readers far beyond a simplistic choice of being for or against disability rights. Rather than being for or against disability rights laws such as the Americans with Disabilities Act (ADA) and Individuals with Disabilities Education Act (IDEA), Bagenstos and Colker raise important questions regarding how the laws might promote disability rights more effectively.
The authors' contributions exemplify careful scholarship. Each author carefully dissects many leading disability rights cases and others that are helpful in building their arguments. The authors provide specifics on the great, though unevenly fulfilled, promises in the Americans with Disabilities Act (ADA), and other disability laws (such as Colker's extensive discussion of IDEA and Bagenstos's contrast of the 2008 ADA Amendments Act with more ambitious proposals for a Restoration Act) (51). As both authors point out, great barriers to equality remain. Compliance with disability law, while generally helpful, will not affect many barriers such as inadequate personal assistance (Bagenstos 128), or law exams' emphasis on "speededness" (Colker 147). Both books provide readers with good food for thought, a wealth of notes, and a useful starting point for future research with policy implications.
Samuel Bagenstos is currently Principal Deputy Assistant Attorney General in the United States Department of Justice's Civil Rights Division. He has taught law at Harvard, Washington University, and the University of Michigan. He represented Supreme Court plaintiffs Mario Echazabal, George Lane, and Beverly Jones in major disability rights cases. Bagenstos promises (and delivers) "an honest assessment of the ADA's successes, failures, limitations, and ambiguities" (11). In providing this assessment, Bagenstos convincingly demonstrates why it is necessary to go beyond the ADA: "Three major themes run throughout the book: the pluralism of the disability rights movement; the contestable nature of what is 'disability' and how society should respond to it; and the surprising narrowness of the accommodation requirement" (2).
Bagenstos provides substantive chapters on "Defining Disability," (arguing against the "backlash" interpretation of Supreme Court definition of disability rulings), "The Role of Accommodation in Disability Discrimination Law" (faulting courts' "narrow interpretation" of the ADA's accommodation requirement), "Disability and Safety Risks" (acknowledging a role for public health professionals while remaining skeptical about "technocratic expertise"), "Disability, Life, Death, and Choice" (illuminating legal underpinnings of abortion, assisted suicide, prenatal testing and withholding of treatment), and "The Limits of the Antidiscrimination Model" (explaining why he characterizes the ADA's record a "mixed at best" (116)) before his eighth concluding chapter on "Future Directions in Disability Law."
Later chapters are based on Bagenstos' second chapter, "The Projects of the American Disability Rights Movement," in which he shows "broad agreement within the disability rights movement on the social [as opposed to medical] model of disability" but "tensions over whether disability is universal or demarcates a minority group, over the role of professionals, and over the notion of 'independence'" (33). He does this using "frame theory," an approach developed primarily by sociologists Erving Goffman, David Snow, and others. Bagenstos characterizes frame theorists as "regrettably imprecise" (27). He then makes the argument that use of an "independent living frame" went beyond extension of a "civil rights frame." I wanted clearer distinction among "frames," "models," and "principles." Bagenstos also uses the latter terms, and does not use them as interchangeable, but his rationale is not explicit. Law and the Contradictions of the Disability Rights Movement generally succeeds in illuminating fuzzy thinking (both by disability rights advocates and their critics), but only generally. An explanatory table listing attributes of major frames, models, and principles would help.
In his third chapter, "Defining Disability," Bagenstos writes that although independence from government was rhetorically successful for disability rights activism, increasingly challenges such as providing personal assistance and health care require an active governmental role. Indeed, "a statute constrained by a focus on independence is unduly limited" (46). Those constraints include silence and imprecision on government action that is vital for efforts to achieve disability equality.
Bagenstos is especially compelling in arguing the necessity of government action beyond the ADA. Unfortunately, antidiscrimination lawsuits under the ADA have been of greatest (though still limited) use to employed people whose jobs were ended or redefined after they acquired a disability (118). Unemployed disabled people frequently have barriers to factors like transportation access, health care, and personal assistance. Indeed, "many of the most significant barriers that keep people with disabilities from entering the workforce are not readily attributed to the discrete faulty acts and omissions of particular employers" (128).
The ADA's limitation has not meant that it has been worthless or counterproductive, however. Indeed, despite its many shortcomings, it "seems likely" there will be positive "net long term effects" (117). Better enforcement, more lawsuits, and a different Supreme Court might help some, but ultimately the welfare state and even charity will benefit disabled people. Bagenstos discerns no support for the arguments of Richard Epstein and others that the ADA has had a counterproductive effect on employment by making employers less likely to hire disabled people.
One reflection of Bagenstos' contribution is the review essay in the Harvard Law Review in which Michael Stein, Michael Waterhouse, and David Wilkins make the case for "cause lawyers" who will critically make the case for expanding disability rights. "Cause lawyers" would be welcome, although they cannot work in isolation. "Cause politics," from officials who seek more than to retain their positions, and "cause rhetoric" from disability advocates, are also necessary. Samuel Bagenstos and Ruth Colker both articulate ideas that will foster critical thinking about disability among lawyers, policy-makers, and advocates.
Ruth Colker teaches law at Ohio State University. She has many previous disability-related publications, including her previous book, The Disability Pendulum: The First Decade of the Americans with Disabilities Act. Her latest work, as does Bagenstos' book, draws on frequent contributions to law reviews, and (overlapping) experiences as a teacher, scholar, and parent.
Colker begins When Is Separate Unequal? by urging, "We should adopt practices based on our conviction that they will help individuals with disabilities overcome a history of subordination in our society" (1). She adds, articulately but not as compellingly, "Although integration can be an important tool in our attempts to attain substantive equality, we should not assume that integration is presumptively more effective than tools that have some separate or segregating elements" (1). Her book indicts "single-minded" (25), naively confused (33), "unwarranted" (80), and "rigid" (138) application of policy, preferring application that is "properly constructed" (38), "flexible" (114), and does a "better job" (141). Colker is very convincing regarding implementation of the integration presumption. As she acknowledges, however, IDEA's mandate is "appropriate" (98) rather than "inflexible" integration, a presumption also applicable, albeit flexibly, to Colker's other topics.
With her explication of the antisubordination principle, Colker provides a too-brief discussion of deinstitutionalization, adopting the controversial (and in my view dubious) pro-institutionalization arguments of E. Fuller Torrey. Her subsequent chapters focus on "The Mythic 43 Million Americans in the Workplace" (dissecting legislative and judicial claims in the light of the fact that disability "is an arbitrary term that seeks to fit a wide range of people" (63)), "K-12 Education" (contesting the presumption in favor of integrated remedies), "Higher Education and Testing Accommodations" (arguing against an excessive premium on "speededness"), "Voting" (written with Daniel P. Tokaji, advocating absentee voting as a complement to poll access), and "Reflections on Race: The Limits of Formal Equality" (criticizing court decisions barring school integration plans in Seattle, Washington and Jefferson County, Kentucky).
In the light of widespread pessimism about academic accommodations, Colker's observations on the premium placed on "speededness" in higher education, and law school education in particular, are useful. Based on her experience, although "speededness" may be valued sometimes in the "real world," it is overemphasized in the academy. As she writes, "Admittedly, there are times in practice when it is an advantage to be quick. During depositions, or oral arguments, one often has to think of a sequence of questions or arguments fairly quickly. But those are examples of verbal quickness, not quickness in writing. Further, many other factors rather than pure speed are involved in those contexts" (203). The "radical" changes Colker urges in the LSAT and in the first year law curriculum would also be applicable throughout higher education and elsewhere.
Another of Colker's more exhaustive chapters is about K-12 education. She continues her argument that integration is sometimes not the best remedy, having earlier explained that the most important consideration must be "antisubordination" (drawing on feminist scholar Catharine MacKinnon). Colker argues that empirical research should enable policy-makers to determine when solutions based on integration work, and when they do not. She explains, "Rather than favoring integrated remedies, I suggest that courts should be agnostic as to whether integrated remedies are the most appropriate" (78). She offers a suggestive eleven-factor checklist whereby courts might make decisions based on "hard data" (135-136).
Although many readers will share my questioning of the proportion and the degree of change in education, Colker acknowledges "The rigid integration presumption served a useful purpose. It helped us move to a system where only 5 percent of children with disabilities are educated in disability-only institutions" (138). She proceeds to urge: "Now, it is time to focus our attention on the 95% of children with disabilities who spend their day in the regular public schools" (138).
Although empiricism may help in countering myths based only on popular prejudice, Colker may have too much faith in empiricism. For example, she cites studies in which integration was shown not to work. But the opposite argument is made persuasively by others in places such as recent issues of Research and Practice for Persons with Severe Disabilities . In a compelling rejoinder to Colker published in the University of Pennsylvania Law Review, Bagenstos posed and answered the key question: "Abolish the Integration Presumption? Not yet." Especially at a time when policymakers plead budgetary constraints, one need not be paranoid to think that separate will mean inferior.
The reason behind Bagenstos' answer (Not yet) to the question (Abolish the integration presumption?) is political context. In addressing disability employment issues, Bagenstos illustrates how empirical data are often valuable to policymakers (e.g., the "sobering" employment statistics in Chapter 7). Policy-makers and observers will "frame" education, employment, and other data differently at different times, so presumptions such as the integration presumption promote fairness. The disability rights movement's success with the ADA's adoption is partially ascribable to conservative rhetoric. As both authors acknowledge, that rhetoric may be used to support wage reductions for personal assistants through "cash and counseling" programs (Bagenstos, 148), and to justify budget cuts in which disability rights advocates become "strange bedfellows" with school districts (Colker, 89-90), and other detrimental policies. I do not think that it is paranoid to suspect that "hard data" from "neutral" research is an illusory objective. Even "big education" will use ostensibly hard data to provide disability policy solutions that are based on self-interest.
Both Bagenstos and Colker alert readers to choices and consequences in disability law, policy, and movement activism. Both writers are justifiably careful to acknowledge that no single solution will always work. Both writers see valuable parallels in race and gender rights movements. They both will provoke readers who realize the importance of enabling substantive equality, and not merely formal equality, for the disability community.
