LSJ 332/CHID 332 Session 7 Spring 2010

The Problem: Discrimination on the Basis of Disability Possible Solution: Development of Disability Rights Laws LSJ 332/CHID 332 Session 7 Spring 2010

Topics • American Disability Policy/Rights 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) • Please Consider These • Role of Law in addressing discrimination? • Is there a difference between discrimination on the basis of race (or gender or ethnicity) and disability?

American “Disability” Policy Development • Historically—some 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 dependency—learned helplessness.

Nineteenth Century USA • 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.

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 teacher’s 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 Court’s 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.”

Revolution • After WWI there was growing reaction by disabled people and others to this treatment. • Blind veterans—American Foundation of the Blind. (1921) • FDR co-founder of Warms Springs Foundation (1927) • Parents of disabled children developed national advocacy groups—e.g., Children’s Benevolent League (now the Arc). • Development of Vocational Rehabilitation • Smith-Sear Veterans Vocational Rehabilitation Act (1918). • Fess-Smith Civilian Vocational Rehabilitation Act (1920).

World War II – Conscientious Objectors

Continued Developments • Hill Burton Act (construction funds to states for rehabilitation facilities (1946) • Cerebral Palsy Society (1946) • Paralyzed Veterans of America (1947) • President’s Committee on Employment of the Physically Handicapped (1952) • President’s Panel on Mental Retardation (1962)

Courts reflect changing attitudes • Justice Marshall in Clebourne decision (1984) summarized the treatment of people with developmental 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 disabilitieshave been subject to a lengthy and tragic history of segregation and discrimination that can only be called “grotesque.”

Twenty-first Century? • Our nation’s policymakers may slowly be rejecting the old approach and adopting a new one (disability paradigm) that recognizes: • Disability is a natural and normal part of the human experience that in no way diminishes a person’s 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 nation’s 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 • When the PROBLEM (discrimination) was acknowledged (by all branches of US government), issue became WHAT IS THE SOLUTION? • Civil Rights Statutes • Prohibit discrimination on the basis of disability • Entitlement Programs • Provide benefit (monetary, service, privilege) to qualified persons because of their disability

Entitlement Programs (open and closed types) • Open types guarantee eligible persons certain level of benefits—cost dependent on number of eligible individuals—mandatory spending programs. • Social Security Disability Insurance (SSDI) • Supplemental Security Income (SSI) • Medicare • Medicaid • Closed types do not create individual guarantee or entitlement to assistance—states given certain amount of money and to extent there is funding, people are served. • Vocational Rehabilitation Program • Children’s Health Insurance Program (CHIP) money to states for low-income children who don’t qualify for Medicaid, including children with disabilities.

Selected Entitlement Programs • Supplemental Security Income (SSI) Program (Title XVI of the Social Security Act) • Enacted in 1972 • Authorizes cash benefits for individuals 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 services—some federally mandated, some optional

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 & Bill of Rights Act 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 • ADA Amendments (Restoration) Act of 2008

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.

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 1990) mandates free appropriate public education for all qualified children.

Laws continued… • Developmental Disabilities Assistance and Bill of Rights Act of 1975 provides funding for services, state DD councils, P&A 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.

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. • ADA Amendments (Restoration) Act of 2008 redefines “disability” for purposes of coverage to exclude any consideration of mitigating measures (corrective measures) thereby reversing a series of US Supreme Court decisions.

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).

Section 504 No otherwise qualified individual with a disability . . . Shall, solely byreason 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 disabilities • Reasonable modifications for participants (e.g., students) • Effective communication • Accessible new construction and alterations

Impact of Rehabilitation Act of 1973? • Minimal attention paid by covered entities under 504—i.e., state governmental services. • Some attention paid by covered entities under 503—i.e., federal contractors when government investigated complaints. • But … bottom line was that few individuals with disabilities or attorneys understood the implications of the law AND minimal governmental monitoring of compliance.

Washington State • 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. (RCW 49.60)

Developmental Disabilities Assistance Act and Bill of Rights (DD Act) • Signed by President Ford in 1975—largely 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.

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 public—e.g., restaurants, theatres, health care providers; • Telecommunications Relay Services (Title IV).

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.

Terms of Art… • Person with disability is an individual • With a Physical or Mental Impairment, that • Substantially Limits • A Major Life Activity… • Without consideration of any mitigating measures taken to minimize the effect of the impairment. • 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 privileges • Case by case analysis required • Undue burden/hardship or substantial modification not required

Individuals with Disabilities Education Act (IDEA) • IDEA is not a civil rights statute. • Federal Government provides financial assistance to states if they agree to follow the extensive due process procedures in 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.

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 reject—i.e., no child is “too disabled” to benefit from services.

Consider This: “From the standpoint of the disability rights movement, the right and ability to exercise autonomy over one’s own life is the basic, defining, characteristic of what it means to be human. Marginalization…is, therefore, oppressive. It is dehumanizing in that it deprives persons with disabilities of their autonomy, their ability both to make their own meaningful choices, free of unwarranted constraint, and to carry them out.” Winter, Jerry. The Development of the Disability Rights Movement as a Social Problem Solver. Disability Studies Quarterly (Winter 2003).

LSJ 332/CHID 332 Session 7 Spring 2010