The%20Problem:%20Discrimination%20on%20the%20Basis%20of%20Disability%20Possible%20Solution:%20Disability%20Rights%20Laws

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The Problem Discrimination on the Basis of
Disability Possible Solution Disability Rights
Laws

• LSJ 332/CHID 332
• Session 7
• Fall 2007

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Topics

• Selected Reading Questions Discussion
• American Disability Policy Development
• American Law
• Rehabilitation Act of 1973
• Developmental Disabilities Assistance and Bill of
  Rights Act (DD Act)
• Americans with Disabilities Act (ADA)
• Individuals with Disabilities Education Act
  (IDEA)
• Writing a Disability Rights Law Step 1

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Reading Questions

• In discussing the treatment of disability
  (particularly disabilities other than physical
  ones) in the American colonies, Arthur Shapiro
  quotes Ferguson as saying the major concern was
  over dependency not disability. What does this
  mean? 
• How did the belief that disabled people require
  the care of social institutions, services, and
  care lead to development of a national welfare
  society and charitable organizations?

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Continued

• How has disability has been used to justify the
  differences in treatment of women,
  African-Americans, and immigrants in this
  country?
• And how has disability been used to argue against
  the inequities of members of these three groups?

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American Disability Policy Development

• Historicallysome would say currently
• Disabled people were/are treated as second class
  citizens.
• Pitied, abused, and objects of charity not
  afforded the fundamental rights of others.
• Power differentiation (them and us) created
  devaluation and dehumanization.
• Belief that they required care/protection(?)
  resulted in increased segregation and
  self-fulfilling prophecies of dependencylearned
  helplessness.

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Nineteenth Century

• So-called Ugly Laws common
• No person who is diseased, maimed, or in any way
  deformed so as to be an unsightly or disgusting
  object is to be allowed in or on the public ways
  or other places in the city. If such a person
  exposes himself to public view, he shall be
  subject to a fine for each offense. Chicago
  ordinance
• Beginning of the institutionalization movement
  with establishment of the Massachusetts School
  for Idiotic Children and Youth in 1849.
• Washington Territory opened school for defective
  and feeble-minded youth in 1886.

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Twentieth Century

• Exclusion from public education
• It is claimed, on behalf of the school board,
  that his physical condition and ailment produces
  a depressing and nauseating effect upon the
  teachers and school children, that by reason of
  his physical condition he takes up an undue
  portion of the teachers time and attention,
  distracts the attention of other pupils, and
  interferes generally with the discipline and
  progress of the school. Beattie v. Board of
  Education of City of Antigo, 169 Wis. 231 (1919).
• Institutionalization and forced sterilization
  routine after the Supreme Courts Buck v. Bell
  decision in 1927.
• Holmes wrote in order to prevent our being
  swamped with incompetence, it is better for all
  the world, if instead of waiting to execute
  degenerate offspring for crimes, or to let them
  starve for their imbecility, society can prevent
  those who are manifestly unfit from continuing
  their kind.

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Revolution

• After WWI there was growing reaction by disabled
  people and others to this treatment.
• Blind veterans formed American Foundation of the
  Blind.
• Parents of disabled children developed national
  advocacy groupse.g., Childrens Benevolent
  League (now Arc).
• After WWII, other new groups developede.g., the
  Paralyzed Veterans of America.
• Disabled people became involved in the civil
  rights movement for African Americans in 1960s.
• Objective was to change societynot the person.
• Civil Rights Model as way to interpret disability
  develops.

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Courts Begin to Reflect Changing Attitudes

• Justice Marshall in Clebourne decision (1984)
  summarized the treatment of people with
  disabilities
• a regime of state-mandated segregation and
  degradation soon emerged that in its virulence
  and bigotry rivaled, and indeed paralleled, the
  worst excesses of Jim Crow. Massive custodial
  institutions were built to warehouse the retarded
  for life the aim was to halt reproduction and
  nearly extinguish their race. Many disabled
  children were categorically excluded from public
  schools, based on the false stereotypes that all
  were uneducable and on the purported need to
  protected nondisabled children from them. State
  laws deemed the retarded unfit for citizenship.
• He concluded that persons with developmental
  disabilities have been subject to a lengthy and
  tragic history of segregation and discrimination
  that can only be called grotesque.

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Twenty-first Century?

• Our nations policymakers have slowly begun to
  reject the old approach and adopt a new approach
  (disability paradigm) that recognizes
• Disability is a natural and normal part of the
  human experience that in no way diminishes a
  persons right to fully participate in all
  aspects of society. (DD Act 101(a))
• In order for disabled people to fully participate
  in all aspects of society, our nations policies
  must ensure that society fixes the natural,
  constructed, cultural, and social environment.
• In times of limited resources and competing
  priorities, existing policies can change, new
  policies may be limited, and the status of the
  policy becomes critical.
• Is the law a right or a benefit?
• Is the policy based in law?
• Is the policy based on charity?

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Disability Law Development

• Entitlement Programs
• Qualified individuals receive benefit (monetary,
  service, privilege) due to their disability
• Civil Rights Statutes
• Prohibit discrimination on basis of disability
• Definitions
• What is a Civil Right?
• What is a Human Right?

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Entitlement Programs (open and closed types)

• Open types guarantee eligible persons certain
  level of benefitsamount dependent on number of
  eligible individualsmandatory spending programs.
• Social Security Disability Insurance (SSDI)
• Supplemental Security Income (SSI)
• Medicare
• Medicaid
• Closed types do not create individual guarantee
  or entitlement to assistancestates given certain
  amount of money and to extent there is funding,
  people are served.
• Vocational Rehabilitation (VR) Program
• State Childrens Health Insurance Program
  (S-CHIP) money to states for low-income who dont
  qualify for Medicaid, including children with
  disabilities.

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Selected Entitlement Programs

• Supplemental Security Income (SSI) Program
• (Title XVI of the Social Security Act)
• Enacted in 1972
• Authorizes cash benefits for individuals and
  couples who are aged, blind, or disabled and
  children under age 18 with disabilities or
  blindness who meet a financial needs test (income
  and resource limitations)
• Medicaid Program (Title XIX of the Social
  Security Act)
• Enacted 1965 with significant amendments since
  then
• Major public financing program for health and
  long-term coverage to low-income persons
  (significant for individuals with disabilities)
• State administered, means-tested program financed
  by both federal and state governments
• Within certain federal guidelines, state set
  their income and asset eligibility criteria
• Broad range of servicessome federally mandated,
  some optional

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Major Civil Rights Statutes

• Urban Mass Transportation Act of 1964
• Architectural Barriers Act of 1968
• Rehabilitation Act of 1973
• RCW 49.60--Washington State Law Against
  Discrimination
• Education for all Handicapped Children Act of
  1975 (IDEA)
• Developmental Disabilities Assistance and Bill of
  Rights Act of 1975
• Voting Accessibility for Elderly Handicapped
  Act of 1986
• Air Carrier Access Act of 1986
• The Fair Housing Amendments of 1988
• Americans with Disabilities Act (ADA) of 1990

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Laws in a Nutshell

• Urban Mass Transportation Act of 1964 requires
  systems accepting federal funds be accessible to
  the elderly and people with disabilities.
• Architectural Barriers Act of 1968 requires that
  all buildings built with federal funds be
  accessible.

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Laws continued

• Rehabilitation Act of 1973 501, 503, 504
  protect persons with disabilities from
  discrimination in federal government, federally
  funded programs, and by recipients of federal
  funds.
• RCW 49.60 -- Washington State Law Against
  Discrimination (disability added 1973).
• Education for all Handicapped Children Act of
  1975 (renamed IDEA in 1990) mandates free
  appropriate public education for all qualified
  children.

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Laws continued

• Developmental Disabilities Assistance and Bill of
  Rights Act of 1975 provides funding for services,
  state DD councils, PA programs and Bill of
  Rights.
• Voting Accessibility for the Elderly and
  Handicapped Act of 1986 requires all polling
  places in federal elections be accessible for
  elderly and people with disabilities.
• Air Carrier Access Act of 1986 prohibits
  discrimination against any otherwise qualified
  handicapped individual, by reason of such
  handicap, in the provision of air transportation.

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Laws continued

• Fair Housing Amendment of 1988 provides
  protection in public housing.
• Americans with Disabilities Act (ADA) of 1990
  protects qualified people with disabilities from
  discrimination in the areas of employment (over
  15 employees), transportation, access to public
  services and facilities, and communication.

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Rehabilitation Act of 1973

• Nondiscrimination and affirmative action sections
  passed in lieu of amendments to Title VII of the
  Civil Rights Act of 1964.
• Requires affirmative action by federal government
  (Section 501) and recipients of federal contracts
  (Section 503) in hiring and promotion of people
  with disabilities in employment.
• Prohibits discrimination towards people with
  disabilities by all entities receiving federal
  funds (Section 504).

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Section 504

• No otherwise qualified individual with a
  disability . . . Shall, solely by reason of her
  or his disability, be excluded from the
  participation in, be denied the benefits of, or
  be subjected to discrimination under any program
  or activity receiving Federal financial
  assistance. 29 USC Section 794(a)

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Section 504 Requires

• Program accessibility (physical as well as
  criteria for participation)
• Reasonable accommodation for employees with
  disabilities
• Reasonable modifications for participants (e.g.,
  students)
• Effective communication
• Accessible new construction and alterations

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Impact of Rehabilitation Act?

• Minimal attention paid by covered entities under
  504i.e., state governmental services.
• Some attention paid by covered entities under
  503i.e., federal contractors when Federal
  government was investigating complaints.
• But bottom line was that few individuals with
  disabilities or attorneys understood the
  implications of the law AND minimal governmental
  monitoring of compliance.

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Developmental Disabilities Assistance Act and
Bill of Rights (DD Act)

• Signed by President Ford in 1975largely as a
  response to media attention and court decisions.
• States that individuals have a right to
  appropriate treatment, services, and
  habilitation.
• Declares that funding for institutions only if
  they
• Provide appropriate treatment, services and
  habilitation
• Meet minimum standards of adequate food,
  sufficient medical and dental care
• Use physical restraints only when absolutely
  necessary and avoid excessive use of chemical
  restraints
• Allow relatives the right to visit at reasonable
  hours without prior notice and
• Comply with adequate fire and safety standards.

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American with Disabilities Act (ADA) of 1990

• Comprehensive, broader coverage than
  Rehabilitation Act of 1973
• Same definition for person with disability,
  reasonable accommodation, etc.
• Covers
• Employers (Title I) with more than 15 employees,
• Public Services of local and state government
  (Title II),
• Public Accommodations (Title III) covers private
  entities open to the publice.g., restaurants,
  theatres, health care providers
• Telecommunications Relay Services (Title IV).

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Basic Provisions

• Covered entities must not discriminate against
  qualified people with disabilities.
• Covered entities must provide 1) reasonable
  accommodation or modification to allow the person
  to participate/benefit 2) auxiliary aids and
  services and 3) physical access.
• Defenses to these duties undue hardship
  fundamental alteration to programs or services
  or direct threat.

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Terms of Art

• Person with disability is an individual
• With a Physical or Mental Impairment, that
• Substantially Limits
• A Major Life Activity
• Qualified individual with a disability is one who
• Can perform the essential functions of the job
  with or without reasonable accommodations or
• Meets eligibility requirements for the program or
  service in question.

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Reasonable Accommodation/Modification

• Modification or adjustments to the job or school
  application process, work or school environment,
  manner under which job or tasks are performed
• Modification or adjustment that allows an
  employee or student to enjoy same benefits and
  privileges
• Case by case analysis required
• Undue burden/hardship or substantial modification
  not required

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Individuals with Disabilities Education Act (IDEA)

• Federal Government provides financial assistance
  to states if they agree to follow the extensive
  due process procedures included in the IDEA.
• IDEA provides rights to children with one of 13
  disabilities who require special education and
  related services in order to benefit from public
  education.

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Basic Principles of IDEA

• States must provide a free, appropriate public
  education (FAPE) to eligible children.
• FAPE must be provided in the least restrictive
  environment (LRE) appropriate to the educational
  needs of the child.
• FAPE includes specialized instruction and related
  services designed to meet the unique needs of
  each child--i.e., individualized.
• Zero rejecti.e., no child is too disabled to
  benefit from services.

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Please Consider These

• Your task is to draft a Disability Rights Law.
• Step 1 discuss the following two questions
• What is discrimination and how do we define it in
  terms of enforcement?
• Who are we covering in the lawi.e., how do we
  define disability?
• Keep in mind
• Concerns that have been expressed in the
  implementation of the ADA
• Examples from other statutes

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Selected Examples

• The right to be free from discrimination because
  of . . . the presence of any sensory, mental, or
  physical disability or the use of a trained dog
  guide or service animal by a disabled person is
  recognized as and declared to be a civil right.
  (Washington State RCW 49.60)
• For the purposes of this law, a person is
  considered disabled if he has a permanent or
  long-term physical or mental functional
  impairment, which, in relation to his age and
  social context, implies considerable
  disadvantages for his family, social, educational
  an work integration. (Argentina)
• A disabled person means a person who is unable to
  see hear or speak or suffering from injuries to
  his limbs or from mental retardation, due to
  natural or man-made causes provided, however,
  that the term does not include persons who are
  alcoholics, drug addicts and those with
  psychological problems due to socially deviant
  behaviors. (Ethiopia)