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

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Title: REHABILITATION ACT OF 1973 Author: Kurt Johnson Last modified by: Sharan E. Brown Created Date: 10/24/2003 8:05:19 PM Document presentation format – PowerPoint PPT presentation

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


1
The Problem Discrimination on the Basis of
Disability Possible Solution Disability Rights
Laws
  • LSJ 332/CHID 332
  • Session 7
  • Fall 2007

2
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

3
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?

4
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?

5
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.

6
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.

7
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.

8
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.

9
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.

10
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?

11
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?

12
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.

13
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

14
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

15
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.

16
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.

17
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.

18
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.

19
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).

20
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)

21
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

22
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.

23
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.

24
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).

25
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.

26
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.

27
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

28
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.

29
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.

30
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

31
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)
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