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Addressing Discrimination: Development of the Disability Rights Laws


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Title: Addressing Discrimination: Development of the Disability Rights Laws

Addressing DiscriminationDevelopment of the
Disability Rights Laws
  • Sherrie Brown
  • Dennis Lang
  • LSJ 332/CHID 332
  • Session 6
  • Fall 2006

  • Discussion of the Early History
  • 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
  • Writing a Disability Rights Law Step 1

Reading Questions
  • Arthur Shapiro makes apparent contradictory
    statements about the historical (current?)
    attitude or belief about disabled people in
    monotheistic religions (Judaism, Christianity,
    Islam). How do you think these three religions
    understood disability?
  • In discussing the treatment of disability
    (particularly disabilities other than physical
    ones) in the American colonies, Shapiro quotes
    Ferguson as saying the major concern was over
    dependency not disability. What does this mean? 

  • Shapiro refers to Goffmans definition of the
    total institution and the inherent differences
    with it and the typical lifestyle. What is the
    total institution and why it is contrary to a
    mainstream life?
  • 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?

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

American Disability Policy Development
  • Historicallysome would say currently
  • Disabled people were treated as second class
  • Pitied, abused, and objects of charity not
    afforded the fundamental rights of others.
  • Power differentiation created devaluation and
  • Victimization resulted in increased segregation
    and self-fulfilling prophecies of dependency.

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
  • 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.

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. State ex rel. Beattie v.
    Board of Education of City of Antigo, 169 Wis.
    231, 172 NW 153 (1919)
  • Institutionalization and forced sterilization
    became the policy after the US 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.
  • Eugenics movement supported the sterilization
    policy. By 1938, 33 states had sterilization

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

Courts begin to reflect changing attitudes
  • Justice Marshall in Clebourne decision (1984)
    summarized the treatment of people with
    disabilities as follows
  • 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.

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 policy based in law?
  • Is the law a right or a benefit?
  • Is the policy based on charity?

Disability Law Development
  • Civil Rights Statutes
  • Prohibit discrimination on basis of disability
  • Entitlement Programs (open and closed types)
  • Open types guarantee eligible persons certain
    level of benefitscost dependent on number of
    eligible individuals. (mandatory spending
  • 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 Program
  • Childrens Health Insurance Program (CHIP) money
    to states for low-income who dont qualify for
    Medicaid, including children with disabilities.

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
  • Education for all Handicapped Children Act of
  • 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

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

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
  • 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

Laws continued
  • Developmental Disabilities Assistance and Bill of
    Rights Act of 1975 provides funding for services,
    state DD councils, PA programs and Bill of
  • 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.

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

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
  • 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

Rehabilitation Act of 1973
  • Nondiscrimination and affirmative action sections
    passed in lieu of amendment 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).

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)

Section 504 requires
  • Program accessibility (physical as well as
    criteria for participation)
  • Reasonable accommodation for employees with
  • Reasonable modifications for participants (eg.,
  • Effective communication
  • Accessible new construction and alterations

Impact of Section 504?
  • 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.

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

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).

Basic Provisions
  • Thou shall not discriminate against qualified
    people with disabilities.
  • Thou shall provide 1) reasonable accommodation or
    modification as necessary in order 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.

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.

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
  • Case by case analysis required
  • Undue burden/hardship or substantial modification
    not required

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

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.

Please Consider These
  • Your committee task is to write 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

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)