Law and the Contradictions of the Disability Rights Movement

Law and the Contradictions of the Disability Rights Movement

Samuel R. Bagenstos
Copyright Date: 2009
Published by: Yale University Press
Pages: 240
https://www.jstor.org/stable/j.ctt1npkj3
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  • Book Info
    Law and the Contradictions of the Disability Rights Movement
    Book Description:

    The passage of the Americans with Disabilities Act in 1990 was hailed as revolutionary legislation, but in the ensuing years restrictive Supreme Court decisions have prompted accusations that the Court has betrayed the disability rights movement. The ADA can lay claim to notable successes, yet people with disabilities continue to be unemployed at extremely high rates. In this timely book, Samuel R. Bagenstos examines the history of the movement and discusses the various, often-conflicting projects of diverse participants. He argues that while the courts deserve some criticism, some may also be fairly aimed at the choices made by prominent disability rights activists as they crafted and argued for the ADA. The author concludes with an assessment of the limits of antidiscrimination law in integrating and empowering people with disabilities, and he suggests new policy directions to make these goals a reality.

    eISBN: 978-0-300-15543-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. ii-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface and Acknowledgments
    (pp. ix-xii)
  4. 1 Introduction
    (pp. 1-11)

    When President George Herbert Walker Bush signed the Americans with Disabilities Act (ADA) into law in 1990, disability rights advocates thought they had won a major victory. For the first time, American law firmly declared that people with disabilities are, and of right ought to be, equal citizens. Comprehensive in its sweep, the ADA broadly prohibits disability-based discrimination by employers, state and local governments, and private good and service providers. Importantly, the statute takes the concept of forbidden discrimination beyond intentional and overt exclusion; it also treats as discrimination the failure to provide “reasonable accommodations” to people with disabilities. In...

  5. 2 The Projects of the American Disability Rights Movement
    (pp. 12-33)

    The disability rights movement has been a remarkably successful social movement in the United States. Barely visible in 1970, by 1990 the movement had secured achievement of its greatest legislative priority—the adoption of the ADA. Along the way, it picked up support from the left and the right, Democrats and Republicans, civil rights advocates and those with no particular interest in civil rights generally. Although courts have narrowed the application of the ADA (as I discuss in the next few chapters), disability rights ideals retain substantial political currency.

    But in many respects it is fallacious to speak of “the”...

  6. 3 Defining Disability
    (pp. 34-54)

    In this chapter, I examine the controversy over the definition of “disability” in the Americans with Disabilities Act. American civil rights laws generally have no protected classes. A law that prohibits race discrimination protects blacks, whites, and everyone else; a law that prohibits gender discrimination protects men and women; and a law that prohibits religious discrimination protects believers of all faiths as well as nonbelievers. But disability discrimination law is different. The ADA, for example, protects individuals against discrimination only if they have a “disability” as defined by the statute. Federal courts, including the Supreme Court, have read the ADA’s...

  7. 4 The Role of Accommodation in Disability Discrimination Law
    (pp. 55-75)

    In this chapter, I discuss the major legal innovation of the disability rights movement—the expansion of the concept of discrimination to include the denial of reasonable accommodation. As the previous chapters have shown, disability rights advocates urge that discrimination consists not just in overt unequal treatment but also in the failure to take account of people with disabilities in the design of the physical environment, social structures, and work routines. A requirement that employers and other entities provide reasonable accommodations to individuals with disabilities counteracts that kind of discrimination. Accordingly, accommodation mandates are the centerpiece of disability discrimination laws...

  8. 5 Disability and Safety Risks
    (pp. 76-94)

    Much disability-based discrimination is motivated by the fear of safety risks. Consider a few examples drawn from prominent cases filed under the ADA: A dentist refuses to treat a patient who has HIV out of fear that the disease will be transmitted by accident during the treatment process.¹ A truck company refuses to hire a driver with insulin-dependent diabetes out of fear that he will experience insulin shock and wreck his vehicle.² An oil refinery refuses to hire an individual with a chronic liver disease out of fear that toxins present in the plant’s atmosphere will be dangerous to his...

  9. 6 Disability, Life, Death, and Choice
    (pp. 95-115)

    In the previous chapter, I examined some of the complexities of the disability rights movement’s antipaternalism by considering two very different ways of cashing out the notion of the “dignity of risk.” In this chapter, I will examine a set of issues on which disability rights advocates have in some cases clashed publicly with one another—with both sides invoking the notion of antipaternalism. That set of issues involves life-and-death questions such as whether to treat newborns with disabilities and whether terminally ill adults should have the right to obtain assistance in suicide. When such issues are discussed in American...

  10. 7 The Limits of the Antidiscrimination Model
    (pp. 116-130)

    The preceding four chapters have focused on legal doctrine. I hope I have shown that significant controversies in the interpretation of the ADA and other laws implicating disability rights highlight important tensions internal to the goals of the disability rights movement. In this chapter, I shift my focus to assessing the success of the antidiscrimination model (best reflected in the ADA) in achieving the goals of the disability rights movement.

    As the previous chapters have shown, identifying the goals of the disability rights movement is not an easy or uncontroversial task. But amid all the tensions about independence, professionalism, and...

  11. 8 Future Directions in Disability Law
    (pp. 131-150)

    As I demonstrated in the previous chapter, the nearly two decades since the enactment of the ADA have seen real successes for disability rights—but those successes have been limited. On important measures, Americans with disabilities remain roughly where they were at the time President George H. W. Bush signed the statute into law. The previous chapter identified two basic reasons for that state of affairs: the lack of effective enforcement of the ADA, and the limits of antidiscrimination law as a tool for achieving broad and deep social change.

    To make the core goals of the disability rights movement...

  12. Notes
    (pp. 151-222)
  13. Index
    (pp. 223-228)