Number 21, Updated Winter 1999
In 1985, Supreme Court Justice Thurgood Marshall wrote that the plight of people with disabilities reflected nothing less than a "regime of state mandated segregation... that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow."
- City of Cleburne v. Cleburne Living Center
People with disabilities are the poorest, least employed, and least educated minority in America. At the end of 1995, it was estimated that one out of five people in the U.S. had some level of disability, one of ten, severe. Too often, people with disabilities have been treated as second class citizens, shunned and segregated by physical barriers and social stereotypes. They have been discriminated against in employment, schools, and housing, robbed of their personal autonomy, and too often, hidden away and forgotten by the larger society. By and large, people with disabilities continue to be excluded from the American dream:
America has a shameful history of cutting off people with disabilities from the rest of society by sequestering them inside their homes, or consigning them to isolated, often squalid institutions. In Hawaii, for example, thousands of people with Hansen's Disease (leprosy) were permanently quarantined to isolated islands, cut off from their families and their livelihood. This forced separation, which had no public health justification, continued well into the 1950's. In 1972, the nation was shocked by film footage showing the filthy and dehumanizing conditions endured by 5,400 mentally disabled children at New York's Willowbrook "School."
Historically, people with disabilities have had little success in vindicating their rights in court. In 1927, the U. S. Supreme Court upheld the forced sterilization of a woman whose mother and daughter were both mentally retarded. People with mental disabilities were, the Court said, a "menace" who "sap the strength of the state." Society would be wise to "prevent those who are manifestly unfit from continuing their kind.... Three generations of imbeciles are enough."
Finally, and thanks in part to the inspiration provided by the civil rights struggles of the 1960's, disability rights advocates began to press for full legal equality and access to mainstream society. Through lobbying and litigation, laws were passed and rights established; public education and advocacy were used to promote reason and inclusiveness rather than fear and pity.
National heroes and celebrities joined grassroots activists to force disability rights issues onto the public agenda. World famous classical violinist Itzhak Perlman, who has polio, will perform only in concert halls that are fully accessible. Former "mouseketeer" Annette Funicello has become a vocal spokesperson for people with multiple sclerosis. But while significant progress has been made to protect the legal rights of people with disabilities, there are still many battles ahead in the struggle for equal rights. Too many disabled people are still institutionalized, despite the fact that the care they need can be provided within their communities. Too much discrimination, fear and even hatred prevail. The ACLU and other advocacy organizations will continue to fight for the rights of people with disabilities, in the courts, in Congress, and elsewhere.
Congress defines disabilities in this way:
Current disabilities are physical or mental impairments that "significantly limit one or more major life activities." The previously disabled are people who have been diagnosed with conditions like cancer or manic depression, but are either fully recovered from or functioning with the condition. Finally, there are those who are perceived as having a disability but who are fully abled, such as burn victims and obese people. This third group is often discriminated against based on "lookism." People whose mental disorders are associated with criminal behavior, and drug addicts and alcoholics who are still engaged in substance abuse are not protected under the Americans with Disabilities Act.
OTHER LAWS THAT PROTECT THE RIGHTS OF PEOPLE WITH DISABILITIES
The ADA can be considered the cumulation of several laws that have enhanced the civil rights of people with disabilities.
Improved access and mobility were guaranteed by the Architectural Barriers Act of 1968; the Urban Mass Transportation Act of 1964 (amended in 1970); the Amtrak Improvement Act of 1973 and the Air Carrier Access Act of 1986.
Equity in education, housing and civic life were boosted by the Individuals with Disabilities Education Act of 1975; the Developmental Disabilities Assistance and Bill of Rights Act of 1975; the Civil Rights of Institutionalized Persons Act of 1980; the Voting Accessibility for the Elderly and Handicapped Act of 1984; the Protection and Advocacy for Mentally Ill Individuals Act of 1986; the Fair Housing Act Amendment of 1988 and the Civil Rights Restoration Act of 1989.
Along with Section 504 of the 1973 Rehabilitation Act requiring nondiscrimination on the basis of disability in all aspects of programs or activities receiving federal funds, the above-mentioned laws were stepping stones to the landmark 1990 Americans with Disabilities Act. (See sidebar.)
LEGAL VICTORIES
Besides the two major Supreme Court decisions of 1998, people with disabilities and their advocates have won other important legal victories. The ACLU has helped many individuals claim their rights:
The right to enter the courthouse: Betty Livingston of North Carolina has multiple sclerosis and uses a wheelchair. In 1996 she won her ADA claim against the local courthouse for refusing to allow her to use the only wheelchair accessible door into and out of the courtroom because it was "reserved" for lawyers and court personnel.
Ending discrimination in professional licensing: In 1994, four young law graduates successfully charged that the Florida State Bar application, which required the disclosure of information about any mental health treatment that applicants received at any point in their lives, violated the ADA.
A non-discriminatory drug test for an athlete and cancer survivor: In 1994, Kevin Hall, a survivor of testicular cancer, successfully invoked the ADA to challenge the Olympic Committee's decision to ban him from sailing. The ban was based on the fact that he tested positive for externally administered testosterone, which did not actually enhance his performance, but which was critical to his survival.
The right to serve on a jury: In 1993, James Bradley Quinn, a resident of Little Rock, Arkansas, brought a successful ADA challenge to a state law requiring the exclusion of deaf people from jury service. At the hearing in federal court, Quinn said through an American Sign Language interpreter that, "The deaf and hard-of-hearing should never accept limitations on their goals."
Public parks cannot discriminate: In 1994, Eddie Dzura, a 33-year-old man who has Down syndrome, was asked a series of humiliating questions in front of a crowd of amusement park patrons. He was then refused admission to a merry-go-round because he had a mental disability. He and his father filed a successful lawsuit under the ADA, and the park was forced to change its discriminatory practice.
Obesity not a job disqualification: In 1993, Bonnie Cook, who was denied state employment solely because of her obesity, was victorious in her case against the state of Rhode Island. A federal appeals court concluded: "In a society that all too often confuses 'slim' with 'beautiful' or 'good,' morbid obesity can present formidable barriers to employment... this is exactly the sort of employment decision that the Rehabilitation Act seeks to banish."
The right to Fair housing: In 1990 the Fairfield, Connecticut Town Council rejected Lucie McKinney's application to open a residence for homeless people with AIDS. She decided to fight back and won her lawsuit charging that the town had violated the ADA and the Fair Housing Act.
FOCUS ON THE ADA
The 1990 Americans with Disabilities Act (ADA) represents the most comprehensive civil rights law in a generation. Based on Congress' finding that people with disabilities have been "subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness," its purpose is to extend to people with disabilities the same legal protections against discrimination available to women and racial and religious minorities under the 1964 Civil Rights Act. The ADA outlaws discrimination in public and private employment, public services, transportation, communications technology and public accommodations (hotels, restaurants, stores, museums, etc.)
The ADA also requires employers to make reasonable modifications in facilities and equipment (depending on the size and resources of the employer) that will enable people with disabilities to perform their jobs. In addition, the Act prohibits private businesses from discrimination against customers with disabilities and requires them to build all new buildings in an accessible manner. The ADA requires private businesses to provide modifications that will enable people with disabilities to enjoy the goods and services being offered.
In 1998, the Supreme Court extended the scope of the ADA. In Pennsylvania Department of Corrections v. Yeskey, it recognized that prisons were not exempt from ADA compliance, disavowing the claim of 36 states that were resisting equal access accommodations for incarcerated people with disabilities. And in Bragdon v. Abbott, the Court established that people with HIV - even if asymptomatic - were entitled to ADA protection from discrimination.
Under the protection of the ADA, millions of disabled people can now seek legal recourse. A 1996 study by the United Cerebral Palsy Association showed that 96% of a sample of disabled Americans surveyed said the ADA had made a positive difference in their lives.
PEOPLE WITH MENTAL DISABILITIES
Some of the earliest legal challenges to unfair discrimination and involuntary confinement were won by people with mental disabilities. This group numbers in the tens of millions in this country, and includes both the mentally retarded and people with psychiatric disorders. Objects of both fear and contempt, the mentally disabled have had to fight long and hard for recognition of their civil rights. A mere generation ago, the mentally ill could be involuntarily committed to state institutions for long periods of time - sometimes decades - with no right to court review of their confinement, and with no right to treatment. On any given day in the 1950s, the institutionalized population in America numbered some 559,000 people (today the number is about 100,000). While hospitalized, mental patients were robbed of their right to personal autonomy. They could be forced to work and to submit to unwanted medical procedures, including medical experiments. Their contact with the outside world could be completely curtailed. They could be placed in seclusion or subjected to physical restraints on an attendant's whim.
People with mental retardation did not fare any better. They were viewed as untrainable and as a potential danger to society because if permitted to propagate, they would beget more "imbeciles." People with mental retardation were also confined by the millions in large custodial institutions.
Today, as a result of the self-advocacy movement and a series of constitutional test cases, people with mental disabilities have many more rights than they used to, including:
But in spite of much progress, people with mental disabilities still face abuse, coercion, and discrimination based on stereotypes and misconceptions.
RESOURCES
Several of the ACLU's Rights of handbooks contain useful information for people with disabilities. They can be ordered from ACLU Publications at 1-800-775-ACLU:
The Rights of People with Mental Disabilities.
The Rights of People who are HIV Positive. Both published in 1996.
Sources for this briefing paper include:
The Americans with Disabilities Act: From Policy to Practice, Jane West, ed., 1991.
1994-95 SIPP data from: McNeil, J. (1995) Americans with Disabilities 1994-95, U.S.
Bureau of the Census, Current Population Reports, Series P70-61, U.s. Government Printing Office.
1995 CPS data summarized in: LaPlante, Kennedy, Kaye and Wegner (1995). Disability and Unemployment, Disability Statistics Abstract #11, Washington, D.C. NIDRR.