June,1999 EXTRA

The Supremes Just Don't Understand
Disability Discrimination

JUNE 23. -- We are coming up on the 9th anniversary of the passage of the Americans with Disabilities Act, the law that pundits love to call "vague."

A decade ago, the bill that would become the ADA was being discussed in the Senate.

"Whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids," read the Senate Report.

It was also important to define "disability," said the Senators, "to ensure that persons with medical conditions that are under control, and that therefore do not currently limit major life activities, are not discriminated against on the basis of their medical conditions. For example, individuals with controlled diabetes or epilepsy are often denied jobs for which they are qualified. Such denials are the result of negative attitudes and misinformation."

Yet yesterday the U. S. Supreme Court, ignoring not only this clear statement but that of the EEOC, the U.S. Department of Justice (the two agencies charged by Congress with interpreting the law) and many lower courts, decided that the Senate Report was insufficient reason to believe that Congress had intended the Act to cover such individuals.

By votes of 7 to 2 in three cases, the Justices decided that the Sutton twins, who had 20-400 vision -- but correctable -- weren't "disabled". Vaughn Murphy couldn't use medicine to lower his blood pressure below the required level without suffering severe side effects, but he wasn't "disabled" either. Nor was Hallie Kirkingburg, who even with corrective lenses had a vision of 20-200 in his right eye. .None of them were "disabled" -- "disabled" being a kind of code word signaling that they might be eligible to use the law. None of them had any right to the ADA's protections, said the Court. They weren't that disabled.

Remember the old joke about being a "little pregnant"? In the long history of discussions in this nation about race, the discussion often arose as to how much African American blood you had to have in order to be considered part of that minority group. Now we're onto the same thing about disability. Without any of the insight of the racial discussion.

You don't have to prove "how black" you are in order to use the Civil Rights Act's protections, though. The Civil Rights Act doesn't measure your African American-ness, or your Hispanic blood, or your Caucasian blood. If you're discriminated on the basis of race, it's not germane which race that might be, or how much of that race's characteristics reside in your genes. If the discriminating party plays the "race" card against you, you're protected.

That's what those who fought for passage of the ADA a decade ago thought we were getting as well. A civil rights law.

The U.S. Supreme Court seems to think otherwise.

Yesterday's decision brought one Supreme Court win for the disability rights movement, though. In the case of Olmstead v. L.C and E.W, a case involving Americans with Disabilities Act's Title II (prohibiting discrimination by state and local governments) the disability rights movement view prevailed: Yes, it was true, said the court, that the ADA's "integration mandate" meant that the two women with mental disabilities whom Georgia had said it would assist only if they were institutionalized did indeed have a right to live in the community instead. Georgia had to provide services for them in the community, said the Court; that was required under the ADA's "integration mandate." It was a narrow ruling, but activists are cheered that the Supremes seem to understand, at least, that the ADA is about integration.

The Supremes seem to have no clear understanding whatsoever that the ADA is about discrimination in employment on the basis of disability, though. Instead of recognizing that they're dealing with a civil rights law, not a benefits law, they fiddled around with ways to limit the number of people could use the law, by trying to conjure up reasons to say they weren't "disabled enough" to "qualify" to even use the law.

Perhaps it's not surprising that the Court has so bollixed up the law's clear meaning. Courts continue to listen to the braying of employers about the "tidal wave of lawsuits" that will ensue if everyone is "allowed" to bring ADA suits. They apparently have decided to treat the ADA as a kind of benefits law -- with eligibility criteria. You're not eligible to use the law if your disability can be corrected. If your poor vision can be ameliorated with glasses; if your high blood pressure can be brought under control with medication; if your diabetes can be brought under control with insulin, well, then, you're not "really disabled."

Let's go back to that Senate Report:

It was also important to define "disability," said the report, "to ensure that persons with medical conditions that are under control, and that therefore do not currently limit major life activities, are not discriminated against on the basis of their medical conditions. For example, individuals with controlled diabetes or epilepsy are often denied jobs for which they are qualified. Such denials are the result of negative attitudes and misinformation."

Isn't the Court supposed to understand what Congress intended in passing a law?

Evidently not anymore. The ADA's disability activist framers put their energy into building just such a "legislative history" for the ADA as a bulwark against future lawsuits. That used to be how it was done. In recent years, though, the courts have said legislative history doesn't count.

So much for the Senate Report.

Justice John Paul Stevens -- who has a law clerk with a disability -- wrote an informed and strong dissent to the wrongheaded ruling.

"The fact that a prosthetic device, such as an artificial leg, has restored one¹s ability to perform major life activities" ( one of the 3 "prongs" of the definition of disability as written in the law) "surely cannot mean," he wrote, that Congress didn't intend to cover this person.

The majority opinion says it means exactly that.

Disability rights advocates have already started to read the handwriting on the wall: "What will the decision mean for people who use assistive technology of any kind?" "Is a paraplegic no longer disabled once she has a wheelchair? What if she needs extra time on her breaks to reach the accessible bathroom in the basement?"

Too bad; she's not disabled if she has a wheelchair. Far fetched? Not if we are to take the Court's reasoning to its logical conclusion.

"Reasoning" does not appear to be what led the court to its conclusions, however. The court appears to have been influenced by public sentiment -- expressed over and over by business interests in a staggering array of media, from trade groups' direct mail panic letters that began circulating in the business community no sooner than the ink was dry on the law, to the opinion articles and columns by pundits who've issued increasingly shrill warnings that the ADA is allowing whiners and malcontented workers to accuse employers willy-nilly of discrimination. Justice Stevens, in his dissent, put it more politely: "the Court has been cowed," he wrote, by the "persistent argument" that if the ADA applies to people with disabilities like correctable vision, or correctable high blood pressure -- disabilities "in their unmitigated state," as the courts put it -- "will lead to a tidal wave of lawsuits."

And where has this "persistent argument" been made? In magazine articles, in opinion articles, in letters to the editor, all from business interests trying to fight the ADA.

It's not surprising that the business community has resorted to these tactics. What's been surprising -- and sad -- is that they've had virtually no public opposition; their opinions have trumpeted forth from magazines, newspaper opinion pages and talk shows with nary a counter response. Had the issues they were howling about been concerned with race or gender or age discrimination, there would have been plenty of response -- as indeed there has been in the debates over affirmative action and "reverse discrimination." On this issue, silence.

The Equal Employment Opportunity Commission's "passivity in galvanizing public support for and understanding" of the ADA" was criticized strongly in a report issued last fall by the U.S Commission on Civil Rights. The EEOC had "not been effective in counteracting negative portrayals of the act in the media and promoting understanding of and support" of the ADA, it said.

The "Disability rights nation," led by its activist arm, ADAPT, rose up in horror when the Supreme Court announced its decision to hear the Olmstead case. ADAPT has been pushing for several years to use the ADA to get people out of institutions; news that the Court would hear a Georgia case arguing that the ADA did not require "de-institutionalization" was a perfect organizing opportunity and they took it, focusing on the fact that a large number of states had signed friend of the court briefs siding with Georgia. ADAPT called it the old "states rights ploy" and vowed to fight to get the states to back off. Other de-institutionalization advocates compared the case to "Brown v. Bd. of Education." That got the media's attention.

ADAPT activists around the nation went into gear. They got all but 7 of the states who signed onto the brief in support of Georgia to remove themselves -- that got the New York Times's attention in two front-page stories, through the indefatigable efforts of ADAPT's volunteer PR staffer Jennifer Burnett, who also got activists around the nation to write op-ed pieces for their local paper. Over two dozen of these opinion pieces appeared. Never before have disability activists so tried to sway public opinion.

The resulting opinion pieces around the country and the news stories on Olmstead in the New York Times didn't influence the court? Right.

As journalist R.C. Smith shows in his book about the 1982 Rowley Supreme Court decision -- the sole substantive ruling by the Supreme Court on educational rights of disabled children -- the Court understood the issues mainly as they were framed in the news media, primarily the New York Times. "Why were so many newspapers and television stations making plain misstatements of facts?" writes Smith in "A Case About Amy" (Temple University Press, 1996).

Ah yes. That's the question for today as well.

***

The initial response from established disability rights organizations was predictable: "We have to go back to Congress."

Lawmaking has always been the movement's preferred tactic. Disability rights lobbyists are the equal of any other rights-group's, and superior to many. The disability rights movement has had more laws passed than virtually any minority in recent times. Passed -- not enforced. Passed -- not understood by the American public. Passed -- only to be eviscerated by the courts. It would be foolhardy to go to Congress now. Not until the public understands and supports the ADA's true intent will a Congressional foray be advisable.

The one arena the movement has not tackled yet is the public arena. The court of public opinion remains virtually unaware of the true disability rights perspective -- although it believes it understands precisely what the ADA is about, because it's been told, over and over, by employers and others who stand to gain from a weakened ADA. Yesterday those forces' decades-long tirade against the law paid off handsomely.

Employers already prevail in about 94 percent of final court decisions under the Americans with Disabilities Act's Title I, says a new American Bar Association study -- up two percent from last year's study of 1,200 ADA Title I cases covered in the ABA's Mental and Physical Disability Law Reporter from 1992 through 1997. (This year's study looked at 408 case decisions from 1998 through the May-June 1999 issue.).

The rulings "will obviously deprive many of Congress¹ intended beneficiaries of the legal protection it affords," wrote Stevens -- Ironically, he said, denying antidiscrimination protections to the very people whose impairments "when corrected, render them fully ...employable."

AS O'Connor and her cronies were putting the final touches on a ruling that would take jobs away from those most likely to want to work, Congress was in the final throes of passing a bill that would allow disabled people who want to work -- but who've been afraid to for fear of losing their Medicare medical benefits -- to keep those benefits when they return to work.

Activists are calling the Work Incentives Improvement Act the "necessary next move after passage of the ADA...to open the door for people with significant disabilities to obtain and retain employment." The bill passed the Senate 99-0 in mid-June -- but not until its medical benefits protections were cut from 10 to 6 years.

Advocates protested: was a disabled person supposed to quit work again after 6 years in order to retain medical benefits?

Not to worry. With the Supreme Court's new ADA ruling, no disabled person will be able to keep a job that long.

Read Ragged Edge on the June 22 Court rulings
Read more about the civil-rights nature of the law
Courts have not really accepted the premises of the ADA.
More on the ADA Supreme Court cases.