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May/June
1999

Our Supremely Defining Moment

by Mary Johnson

Mary Johnson is Editor of Ragged Edge.

By the time you read this, the U.S. Supreme Court will have finished hearing oral arguments on five cases whose outcomes will profoundly shape not only the nature of our Americans with Disabilities Act, but of our country's very understanding of what it means to be a "person with a disability." They could decide the wrong way.

Many of us have heard of the Olmstead case: the Supreme Court will rule whether states can force people into institutions in order to receive services. The other four cases have not stirred activist ire. But decisions in these cases could be devastating for the movement and the years of work that brought us to the signing of the Americans with Disabilities Act.

"Several years ago, we all started saying that disabled people were losing an awful lot of ADA cases," said Linda Krieger, assistant professor of law at the University of California/Berkeley's Boalt Hall Law School. What was particularly troubling, she said, was that disabled people were losing in the courts of judges "who were very liberal on other civil rights issues."

Judges were stopping cases before they even got started, telling people they weren't "disabled" as the ADA defined it "and that they therefore didn't have a right to use the law at all," said Krieger.

"It's incredible how many cases are brought to court where the issue of discrimination never gets discussed--where the judge decides the person isn't 'disabled' and therefore has no right to sue," said law professor Bob Burgdorf.

The four cases are Sutton v. United Airlines; Murphy v. United Parcel Service; Albertsons, Inc. v. Kirkinburg and Cleveland v. Policy Management Systems, et. al. Three of them--Sutton, Murphy and Albertson--"all raise this point about 'what is a disability' under the ADA and in the context of work," said Matthew Diller, associate professor of law at Fordham University.

"If you can't do one job--the one you want--without an accommodation, does that mean you're 'substantially limited'--and therefore an 'otherwise qualified' person with a disability' as the ADA means it?"

The Cleveland case asks "whether a person getting disability benefits can even sue under the employment provisions of the ADA."

The reasoning here is that if you're getting Social Security disability benefits, that's tantamount to admitting that you can't work.

If that's the case, said Diller, who has written on Social Security Disability law, there's no way you're being discriminated against in employment, since you've already admitted you can't work! "These are terrible cases," he said.

"We are at a critical point. By July, either all these problems will have been corrected, or the ADA will become a very narrow law."

Unlike the Civil Rights Act of 1964, which "came after a tremendous amount of mass consciousness-raising about race and racism, the ADA passed with very little understanding of what disability discrimination really is," said Krieger. The ADA is "based on a socio-cultural model of disability that judges don't understand.

"Judges operate from an 'impairment' model," Krieger continued. "They keep asking whether the plaintiff is 'sufficiently impaired' to 'deserve protection' under the ADA."

The Americans with Disabilities Act--and the disability rights movement that spawned it--has at its core "a central premise both simple and profound": that people called "disabled" by society are just people--not different in any critical way from other people," said Burgdorf. A staffer with the U.S. Commission on Civil Rights in the 1980s when the ADA was just a gleam in activists' eyes, Burgdorf was responsible for the Commission report "Accom modating the Spectrum of Individual Abilities, which he says formed the philosophical underpinning of the law.

Yet the courts, with what he calls "manifestly good intentions," have interpreted and applied the law in ways "that reinforce a diametrically opposite premise." He decried what he called the "special class" and "preferential treatment" mentality that has crept into the interpretation and enforcement of a law designed to ensure equality and integration. "Legal analysis has proceeded quite a long way down the wrong road."

"Though we are conditioned to think otherwise, human beings do not really exist in two sharply distinct groups of 'people with disabilities' and 'people without disabilities,' " Burgdorf said, echoing what he wrote the 1985 report. Disability is "a natural part of the human condition resulting from that spectrum, and will touch most of us at one time or another in our lives.

"The goal is not to fixate on, overreact to or engage in stereotypes about such differences but to take them into account" and allow for "reasonable accommodation for individual abilities and impairments that will permit equal participation," he said.

This, he said, is the real goal of the ADA: to "provide equal opportunities for all Americans"--not to "identify a particular group of individuals who are entitled to some kind of special treatment."

The ADA presents a set of new ideas for people. While the civil rights model has had some positive effects for the disability rights movement, said Krieger, it has come with baggage as well: in legal thought, "equal rights" equates with "equal treatment."

It's particularly hard for people to understand the idea of "equality" behind the ADAč "that people have to be treated differently sometimes in order to achieve equal rights," as Diller put it.

To many judges, this seems akin to affirmative action or the "special rights" charge that is leveled by conservatives against all manner of efforts to extend social justice.

"If anyone thought the disability movement's work was finished with the passage of the ADA" they are very very wrong, Diller said.

Disability rights holds the power to change the trajectory toward a cookie-cutter society," he said. It has the potential "to transform society itself." But to do that,"disability" itself must first be understood.

 

The 'blind bus driver' problem
and where it drove us

"No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded . . ." This was the wording of Section 504 of the Rehabilitation Act of 1973, the law whose language was used in the ADA.

That was a big mistake, said Bob Burgdorf, who helped draft the law.

Prohibiting discrimination based on disability "was a novel idea," he said. Those drafting the law worried that judges would think that nondiscrimination "meant treating the individual as if he or she did not have a disability"--and that if this were the case, "we'd end up having blind people suing to be allowed to be bus drivers," said Burgdorf.

It should have been a groundless worry. Disqualifying a person from a bus driving job for inability to drive would not, of course, be an act of disability discrimination but "an evenhanded application of a job-related qualification standard." But people worried nevertheless about what people might think.

These efforts by the law's framers to be "helpful" sent us down a "wrong path" that we've yet to get off of, he said.

Another route to achieving civil rights for disabled people would have been to amend the Civil Rights Act itself to bar discrimination on the basis of disability, as it already did on the basis of race and gender. Advocates pushing for this approach had such an amendment ready. It read, "No person in the United States shall, on the ground of . . . physical or mental handicap, be excluded from participation in, be denied the benefits of , or be subjected to discrimination. . . ." There was no "otherwise qualified" phrase in the Civil Rights Act.How did the "otherwise qualified" concept get into our law, then? Burgdorf blamed the "blind bus driver problem."

Using the term "otherwise qualified" was "totally inappropriate," he said. But the term made it into the ADA, we're now stuck with the Supreme Court having to figure out something which was clear to disability advocates like Burgdorf all along.


The symposium "Backlash against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies" at which Diller and Burgdorf spoke, was organized by Linda Krieger and presented by the Berkeley Journal of Employment and Labor Law, which will publish the symposium papers in its February, 2000 issue. Abstracts of the papers presented -- and in some cases the fullpapers themselves -- can currently be found online at http://www.law.berkeley.edu/academics/csj/symposium/

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