Disability and Democracy

by Michael Bérubé on April 22, 2008

Our long national nightmare is almost over: today, after seven hard weeks of bowlin’ and shootin’ and drinkin’, the people of Pennsylvania will finally get to vote in our primary. It’s been a critical time in this electoral cycle, a time during which American news media were able to dig hard and deep into the issues that underlie the moral and constitutional crisis to which the Bush Administration has brought us: did Barack Obama meet August Spies at a fundraiser in 1886 before founding the Muslim Brotherhood in 1928? And what about Cindy McCain – can she really be that perfect?

So I thought I’d write a little something about the candidates’ policy positions on disability, because apparently (a) no one knows that the candidates have policy positions on disability and (b) policy positions on disability are not as important as flag pins. Granted, disability policy never swings an election. And why should it? Unless you yourself have a disability, or unless you know someone with a disability, or unless you’re concerned about things like employment or health care, or unless you might get sick or injured someday, or unless you’re planning on aging, disability policy is irrelevant to you.

Hillary’s disability policies are pretty damn good, especially when it comes to health care, which I’ve always considered (not that I’m alone in this) the issue on which she’s more solid than Obama. Why her campaign chose instead to emphasize her crossing of the Commander-in-Chief threshold with McCain, and the 3 am phone call from the wolves in the forest, is anybody’s guess. My own is that they’ve thoroughly internalized the belief that Democrats are weak on national security, and that as a result, they decided to run against Obama’s opposition to war in Iraq by talking dismissively of that speech he gave in 2002, fluffing McCain, and claiming that Hillary actually criticized the war before Obama did – that is, if you start counting in 2005, if by “criticize” you mean “argue for a better war,” and if you use “before” in the sense of “after.” Thus we got Hillary as Iron Lady rather than Hillary as Health Care Provider and Disability Worker. Though it was probably crafted by Mark Penn, it sounds like a Democratic campaign devised by Maureen Dowd: at all costs, do not be the mommy party – associate the candidate with big hard military strength.

So over the past few months, I admit, I’ve had a hard time distinguishing between my own Hillaries: Hillary the capable policy wonk and Hillary the doubter of Obama’s patriotism and and general electability. (I assure you that if you’d told me, two months ago, that she would seek the endorsement of the reclusive billionaire maniac behind the Arkansas Project, I’d have told you that you were smoking some of the crack that Governor Bill Clinton flew into the Mena airport with the help of the Contras and Queen Elizabeth.) But despite the shenanigans of these past few months, I still can recall that Hillary the capable policy wonk is a very capable policy wonk.

OK, so go to Hillary’s web page, click on “Issues,” choose “Providing Affordable and Accessible Health Care,” then go over to the right sidebar – the one headed “Hillary’s Plans,” and go down to the subheading, “How Hillary’s plan affects:” and then click on “Americans with Disabilities.” You’ll get a .pdf that reads, in part:

Employer-sponsored health care can present significant cost and coverage concerns for both employers and people with disabilities. Some insurance plans cap payments for durable medical equipment, which includes items such as wheelchairs, crutches, braces, and ventilators; in effect, making coverage for those items unavailable. The American Health Choices Plan prohibits insurance companies from denying coverage to limiting coverage for pre-existing conditions. In addition, insurers will be prohibited from charging significantly higher premiums based on medical conditions, age, gender, or occupation.

This is good stuff, though it painfully exposes the problem of relying on employer-sponsored health care in the first place – and doesn’t mention the fact that the unemployment rate for people with disabilities is . . . well, exceptionally difficult to determine, but quite high. But then, there’s another problem here, and throughout Clinton’s website: because (as is so often the case), there’s no separate heading for policies affecting people with disabilities, you have to look around under other issues – in this case, health care – to see if disability is mentioned.

OK, putting disability under health care makes sense, of course. But then in the “Issues” section under ”Improving Our Schools,” there’s a subheading, “A Champion for Educators and Children,” which contains the critical passage:

Among her many efforts to fully fund IDEA [the Individuals with Disabilities Education Act], Hillary cosponsored the IDEA Full-Funding Act of 2003 to finally fulfill the federal government’s long-standing promise to provide for 40% of the average per pupil expenditure for each and every child with a disability. In 2005, she offered an amendment to provide $4 billion additional to IDEA. The amendment failed by a narrow margin.

This too is good stuff. IDEA is notoriously underfunded; the next time you hear a conservative whingeing about the injustice of “unfunded federal mandates,” ask him (or her!) whether they’d vote for full funding for IDEA. That usually quiets ‘em down pretty quickly. But you really have to hunt around for this material on the Hillary website: I mean, who would guess that her position on IDEA is filed under the subheading “A Champion for Educators and Children,” but that the subheading “Giving Every Child a Chance” doesn’t mention the subject?

Likewise, the wonderfully informative “Agenda to Expand Economic Opportunity for People with Disabilities is, for some reason, filed under “Supporting Parents and Caring for Children,” even though it contains fine proposals like this one, which would seem to have relatively little to do with supporting parents or caring for children:

2. Re-establish the Clinton Administration Executive Order to Hire 100,000 Qualified Employees and Make the Federal Government a Model of Accessibility.

During the Bush administration, the federal government has failed to make jobs or information technologies fully accessible for people with disabilities. In her first month in office, Hillary Clinton will review all federal websites to ensure they are accessible. She will also re-establish Executive Order 13163 to hire 100,000 qualified employees with disabilities to federal employment over five years.

You get the idea. A Hillary Clinton Administration would be quite good on disability/ health and disability/ employment, and generally good for my kid – this one, not the college senior who turns 22 today (happy birthday, Nick! Now get back to work). I have no substantial complaints about Clinton’s proposals, though of course I wish that her husband had issued that Executive Order to hire people with disabilities about seven and half years earlier than July 26, 2000. But someone should’ve told the campaign to reorganize that website so that Hillary’s disability policies are clearer and more . . . accessible.

And I have to admit that I’ve been mightily vexed by this phenomenon in recent years. Not by Hillary Clinton herself, mind you – by the phenomenon of the avoidance of disability qua disability. It’s as if we Americans have been talking about disability all our lives, as Molière’s M. Jourdain has been speaking in prose, without realizing it. Remember that debate about SCHIP? You know, the one we lost on Bush’s veto? What the hell was that about? It was about disability, folks – about children suffering catastrophic illnesses and traumatic injuries for which their parents couldn’t (and their parents’ dastardly, moustache-twirling health-insurance providers wouldn’t) provide. Vets returning from Iraq with PTSD or TBI (post-traumatic stress disorder or traumatic brain injury) and being warehoused and/or underserved and/or neglected by VA hospitals? Uh, well, once again, here we’re talking about disability. Why in the world do we frame these things as matters of “health” or “employment” or “veterans’ benefits,” when doing so prevents us from realizing that we’re all touching different appendages of the 8000-pound elephant in the room? The subject is disability, people. It’s about our common frailty and vulnerability. Get used to it.

Hillary’s overall American Health Choices Plan (16-page .pdf) is about as good as a private-insurance-based plan can be. But if you’re looking for disability policy, you’ll look in vain. You’ll read about “eliminating insurance discrimination” (page 5) and “creating a retiree health legacy initiative” for “major American employers with workforces that face unusually high health care costs due to a high ratio of retirees” (a group that includes “our major manufacturers,” and, for Pennsylvanians like me, evokes “mine workers”) that will “provide a tax credit for qualifying private and public retiree health plans to offset a significant portion of catastrophic expenditures that exceed a certain threshold” (page 8). (That passage is followed by a qualifier: “Such reinsurance would be time-limited to reflect the short-term demographic need of the aging baby boomers, and would be devised in a manner that does not add to our long-term fiscal challenges.” Yes, well, good luck with that.) But the wonky point remains: if you’re interested in public policies for people with disabilities, the Clinton campaign offers you a series of sane, sound proposals – many of which would benefit people with disabilities, but few of which speak of “disability.”

Obama, by contrast, has a separate heading titled “Disabilities.” This in itself is remarkable; but it turns out that this isn’t just a matter of better web design. Whoever is advising Obama on disability policy is really, really smart. The nine-page .pdf, “Barack Obama’s Plan to Empower Americans with Disabilities”, says many of the same things Hillary does – about supporting full funding for IDEA, providing health coverage for the most vulnerable among us, and hiring 100,000 people with disabilities in the federal government (except that someone needs to tell the Obama camp that it’s Executive Order 13163 Obama needs to reinstate, not 13173, which created an Interagency Task Force on the Economic Development of the Central San Joaquin Valley; reinstating 13173, whatever its merits, probably won’t do much for disability policy in the United States). But the plan is, remarkably enough, at once broader and more specific than Clinton’s.

It promises $10 billion in early intervention programs for children with special needs, via Early Head Start, Early Learning Challenge Grants, and IDEA Part C.

It proposes “a comprehensive study of students with disabilities and transition to work and higher education” – something that (a) has never been done and (b) is of great interest to teenagers with disabilities and their loved ones. “As president,” we’re told, “Barack Obama will initiate such a study and task his Secretary of Education with researching: the barriers that keep students with disabilities from seeking and completing higher education; the barriers that prevent students from making a direct transition to work; the extent to which students with disabilities are able to access loans and grants; reasons college students with disabilities drop out at a higher rate; and best practices from schools that have effectively recruited and graduated students with disabilities that can be implemented more widely.” This is, as you might imagine, a (cough) special interest of mine. But that’s not just because I have a 16-year-old with Down syndrome. In recent years I’ve had many fine students at Penn State – twenty-year-olds with dyslexia, or Asperger’s Syndrome, or arthritis, or mild cerebral palsy – request “reasonable accommodation” from me on final exams. And I’ve been amazed and appalled at how few many of my colleagues (here or elsewhere) seem to believe that they’re under no obligation to provide reasonable accommodation for everyone. (Guess what? If you teach in the United States, you have that obligation! It’s a real federal law!) So I’m thinking that “a comprehensive study of students with disabilities and transition to work and higher education” might not be a time-wasting exercise for disabliity-policy wonks. I’m thinking that it might actually make a world of difference for students with disabilities – in high school, in transition, and in college.

It pledges support for Tom Harkin’s ADA Restoration Act, which would “overturn the Supreme Court decisions that limit the ADA’s coverage and effectiveness.” (This is huge for those of us who follow disability law. Don’t get me started on University of Alabama v.. Garrett or Sutton v. United Air, because if you do, I’ll break the 4000-word blog-post barrier, as I used to do at my windy old blog.)

It has a subsection devoted to flexible work plans, ranging from an expansion of the Family and Medical Leave Act to protection against “caregiver discrimination.” “Workers with family obligations often are discriminated against in the workplace,” it notes. “This is a growing problem, as evidenced by the skyrocketing number of discrimination suits being filed: there has been a 400 percent increase in the number of family responsibility discrimination lawsuits in the last decade.” Again, though, this is of no interest to you unless you know someone with a disability, or know someone who might someday have a disability.

It promises to make the U.S. a signatory to the U.N. Convention on the Rights of Persons with Disabilities.

And it informs us that “Barack Obama is a cosponsor of the Genetic Information Nondiscrimination Act (GINA), which prohibits discrimination on the basis of genetic information by employers and health insurers. The Act also applies health information privacy regulations to the use and disclosure of genetic information.”

The funny thing is that Hillary Clinton is among the bill’s other cosponsors in the Senate, but you won’t learn that from her website (why, I can’t imagine). More importantly, if you have genes, or if someone you know and love has genes, you should be interested in genetic privacy. Because you never know when your employers might require you to submit to blood tests so that they can take a peek at whether you have any genetic susceptibility to debilitating conditions. Down that road lies the world of Gattaca, my friends, and that’s why it passed the House last year by a vote of 420-3. Unfortunately, Tom Coburn (R- Outer Wingnuttia) has blocked it in the Senate, and since Coburn is apparently one of Obama’s Friends From the Fringes, now would be a good time for Obama to ask his friend to do us all a great big favor.

Oh, and the rhetorical appeal to “my friends” reminds me! I’d almost forgotten all about that John McCain fellow. Apparently he’s become the nominee of the Grand Old Party, on the grounds that he is not a barking lunatic who will promise to double Gitmo and build a tall fence to defend us against the Gay Immigrationist Mexislamofascist Menace. Yes, well, McCain’s disability policy is much easier to summarize: (a): we need to cut costs; and, following from (a), (b): don’t become disabled:

Controlling health care costs will take fundamental change—nothing short of a complete reform of the culture of our health system and the way we pay for it will suffice. Reforms to federal policy and programs should focus on enhancing quality while controlling cost.

This means you, solider – and you too, person with autism, you, person with Alzheimer’s, and the rest of you malingerers. Buck up! Your job is to control health care costs for the rest of us.

McCain 2008: Because People Who Talk About Health Care and Disabilities Are Just Taking Cheap Shots.

Cross-posted at TPM Café.

{ 46 comments }

1

john i 04.22.08 at 4:04 pm

The bit about “Whoever is advising Obama on disability policy is really, really smart” comports with everything else I’ve seen about his campaign and whom he is bringing on board (ie. not Mark Penn). I am really looking forward to his cabinet selections.

2

alkali 04.22.08 at 4:07 pm

There is a transcript of a Obama campaign conference call on disability policy available online. It appears from that transcript that Obama’s former chief counsel in his Senate office (who has now works for the Obama campaign) has a child with an autism spectrum disrorder and that experience has informed the Obama policy statement on disabilities.

3

widget 04.22.08 at 4:19 pm

Did you ever write down what you thought about Garrett? Because I would like to read what you have to say about that.

Especially about footnote six, which still sometimes keeps me warm at night with impotent rage.

4

Maurice Meilleur 04.22.08 at 4:21 pm

Apropos disability policies, here’s something of note: John McCain Gets Tax-Free Disability Pension From Navy.

Perhaps another part of McCain’s health care plan: if you are disabled, run for public office and marry rich.

5

SamChevre 04.22.08 at 4:23 pm

And I’ve been amazed and appalled at how few of my colleagues , should, I think, be “how MANY of my colleagues.”

6

Michael Bérubé 04.22.08 at 4:26 pm

Well, that would help explain Obama’s statement on autism spectrum disorders.

And as Obama says in his campaign video clip on disability, he learned about living with disability from his father-in-law, who had multiple sclerosis. Which reminds me: I forgot to mention that Obama supports “independent, community-based living for everyone who chooses it,” and his plan explicitly mentions Olmstead v. L.C., one of the few reasonable Supreme Court disability-rights decisions in recent years.

And once again, to give her her due, Hillary’s quite good on autism, as well.

7

Michael Bérubé 04.22.08 at 4:30 pm

should, I think, be “how MANY of my colleagues.”

Thanks, Sam! It should indeed. That’s what I get for only half-revising from “I’ve been amazed and appalled at how few of my colleagues seem to understand that they have an obligation. . . .”

8

Bruce Baugh 04.22.08 at 4:48 pm

Absolutely fascinating. Thank you, Michael, this is important to me and will be to friends.

9

The Modesto Kid 04.22.08 at 5:03 pm

whether they’d vote for full funding for IDEA

This misses that “unfunded mandates” is a line aimed at mandates, not at the funding thereof. The conservative thus questioned will (if he’s smooth) say “I would never have voted to enact such an infringement on our states’ rights to discriminate against children with disabilities, and I would vote now to rescind it. Lack of access now, lack of access forever!”

10

Matt Weiner 04.22.08 at 5:31 pm

Especially about footnote six, which still sometimes keeps me warm at night with impotent rage.

Wow, that’s a corker.

[Footnote six reads: “The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U.S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.” Which is to say that Rehnquist is approvingly citing forced sterilization of the disabled; and I’m pretty sure he didn’t even need to do that to reach the result by means of his utterly ridiculous Eleventh Amendment jurisprudence.]

11

c.l. ball 04.22.08 at 5:36 pm

I agree on the policy side, but I have on bone to pick.
And I’ve been amazed and appalled at how few of my colleagues (here or elsewhere) seem to believe that they’re under no obligation to provide reasonable accommodation for everyone…. If you teach in the United States, you have that obligation! It’s a real federal law!)

The RA/ADA law and regulations do not create obligations for faculty unless that person is a direct recipient of federal funding or “any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.” In short, just drawing a salary does not make you a recipient. Having an NEH grant would, but only in regards to the NEH grant activities.

The university, however, has an obligation because they receive funds to instruct students. Universities seeking to shirk their duties try to trick faculty into thinking the whole onus rests on them. If a student needs a note-taker, it is not the instructors duty under federal law to take notes for the student or to pay for a note-taker for the student. The university, however, does have an obligation to do so.

12

c.l. ball 04.22.08 at 5:41 pm

Pfui. Only “regulations” was supposed to be hyper-linked.

The link is: http://www.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#S4

But

This misses that “unfunded mandates” is a line aimed at mandates, not at the funding thereof.

Except that “conservatives” loved mandates, even unfunded ones, if they are the REAL ID stuff.

13

sina 04.22.08 at 5:44 pm

Happy Birthday, Nick!
And thanks for all of this research, Herr Dr. Pr. Dangeral.

14

Michael Bérubé 04.22.08 at 5:49 pm

Perhaps another part of McCain’s health care plan: if you are disabled, run for public office and marry rich.

I looked and looked for that proposal on McCain’s web site, and finally found it under “Family Values.”

The conservative thus questioned will (if he’s smooth) say “I would never have voted to enact such an infringement on our states’ rights to discriminate against children with disabilities, and I would vote now to rescind it. Lack of access now, lack of access forever!”

Touché. Look! There’s a schoolhouse door we can use for the photo op!

15

"Q" the Enchanter 04.22.08 at 5:56 pm

““Barack Obama’s Plan to Empower Americans with Disabilities”

How the hell is giving Americans disabilities going to empower them?

16

Michael Bérubé 04.22.08 at 6:02 pm

C. L.: point taken. I meant to say that professors don’t have the right to deny students reasonable accommodation — not that the professors themselves have to provide note-takers or closed captioning or widened doors.

Did you ever write down what you thought about Garrett? Because I would like to read what you have to say about that.

Sorry to have missed you, widget. No, I’ve never published anything about Garrett, but I do have some notes that read, “what the @#%& in this case justifies this woman’s @#%&ing demotion in the first @#%&ing place? why the @#%& does that count as ‘rational’ in a @#%&ing ‘rational basis’ review? and why the @#%& is the Eleventh @#%&ing Amendment trumping the equal protection clause of the Fourteenth? This makes no @#%&ing sense at all.”

But I decided to assign my class Anita Silvers’ and Michael Stein’s “From Plessy (1896) and Goesart (1948) to Cleburne (1986) and Garrett (2001): A Chill Wind from the Past Blows Equal Protection Away,” in Linda Hamilton Krieger, ed., Backlash Against the ADA: Reinterpreting Disability Rights, instead.

I hear that Justice Rehnquist later developed a more expansive and creative understanding of the Fourteenth Amendment, by the way.

17

jacob 04.22.08 at 6:24 pm

did Barack Obama meet August Spies at a fundraiser in 1886 before founding the Muslim Brotherhood in 1928?

So is this what Spies meant when he promised that “there will come a day when our silence is more powerful than the voices you strangle today”?

18

mpowell 04.22.08 at 6:41 pm

What qualifies as a disability? Is there like an official list? What about something like Crohn’s disease? That can be pretty disabling, though not as difficult as some things. I am curious for personal reasons.

19

laura 04.22.08 at 7:12 pm

I would like to add one more item to the policy wish list — subsidized childcare for with disabilities. Most childcare centers will boot out kids with issues. Although the ADA prohibits facilities with federal dollars from discriminating against those kids, there are gaping loopholes. Public schools don’t offer after care programs for kids with disabilities. It is difficult to find babysitters willing to watch a child with disabilities.

I know that I’m asking way too much here. It would just be nice if someone just picked up the tab for my kid’s speech therapy, but I thought I would throw that one out there.

20

Kelly 04.22.08 at 7:15 pm

IANAL, but a self-advocate that stays aware of ADA issues.
What qualifies as a disability is a *big* issue.
Under Social Security Disability, the disability must impact 2 major areas of life functioning ie., walk, see, self care. The intent of the ADA was to cover those of us who *are* able to work, but need supports to do so. The problem under the ADA, has been that they have been leaning the definition into the same realm as that used for SSDI coverage.
Cases under ADA must meet two qualifications: you must be able to fulfill the primary duties of the job and you must have a qualifying disability or be able to prove that the person/place regarded you as a person with a qualifying disability.

Thus, you end up in no man’s land of “not disabled” or “not qualified to do the work.”
That is, if you fit the SSDI definition, you are not likely to be able to fulfill the main requirements of the job.
I attended a conference for YA with disabilities in DC 9-10 years ago. The initial sponsor for ADA was there and explained how his own epilepsy is no longer covered by the ADA if the issue goes to court. The court will most likely find him “not qualified as disabled” since if he takes his medication, he can function.
it is a head/table/head/table pounding situation.

21

Pliggett Darcy 04.22.08 at 7:35 pm

I think it’s also important that Obama’s made some encouraging noises re: Supreme Court justices and the federal judiciary in general. Maybe I’m imagining things, but I’ve gotten the feeling he just cares more about judicial nominations than Clinton. (Obv., this would be consistent with his background as a civil rights atty.) I mean, as a disability rights lawyer I favor Harkin’s ADA Restoration Act, but even without the “substantial” limitation bit, the federal judiciary will still have to enforce that too. “Of what use to make heroic vows of amendment, if the same old lawbreaker is to keep them?”

22

Anderson 04.22.08 at 8:24 pm

I hear that Justice Rehnquist later developed a more expansive and creative understanding of the Fourteenth Amendment, by the way.

Yes, disabled ballots were well provided for. But just in that one case — wouldn’t want to send the wrong message to other malingering ballots.

23

JP Stormcrow 04.22.08 at 9:29 pm

And what about Cindy McCain – can she really be that perfect?

Glad you flagged that, did you notice how the Liberal Media chose to phrase the headline as a snarky question? Of course they would write the story in a way that would tend to reinforce people’s doubts about her. I’m just sick, sick to death of it, pointy-headed east coast elites who couldn’t inherit a fortune from their father’s beer distributorship if they tried, filtering our view of honest, down-to-earth thieving drug addicts people.

[/snark off]
Great post!

24

Kathleen 04.22.08 at 9:33 pm

Kelly, if you have time and see this can you take another shot at explaining how ADA and SSDI converge? I just couldn’t quite follow.

One thing that drives me crazy about the whole framework of disability is how it intersects in strange ways with privacy laws such that disability ends up being treated as a shameful thing, to be hidden if possible. That makes it really, really hard to enforce any kind of ADA provisions.

If you are in a wheelchair, well, then people will notice and if they refuse to accomodate you at the workplace they can get in legal trouble for it. (probably they usually do not get in trouble for it — I am NOT saying, woo-hoo, lucky people with visible, physical disabilities — but I am going somewhere with this). On the other hand my sister, who has mild Cornelia de Lange Syndrome and is therefore developmentally disabled, has had a series of job coaches assigned by the state Vocational Rehabilitation (she’s not *injured* and she’s not *recovering*, but whatever) agency who are really concerned to try to place her in a job she might be able to do and help her keep it but *without* revealing to the employers that she has a disability! Such that if she doesn’t adapt to the work quickly enough and gets fired, no one is in trouble for failing to make reasonable accomodation because they didn’t know they were under any obligation to do so.

On the one hand, I sympathize with VR workers who are wanting to protect their clients from discrimination they might face if people knew they were disabled. On the other hand, it makes disability legislation basically unenforceable in many cases, such that discrimination gets to sail happily along, unmolested by de long arm of de law and only slightly bothered by whatever teeny visibility disability issues get in the larger culture.

25

JP Stormcrow 04.22.08 at 9:37 pm

the endorsement of the reclusive billionaire maniac behind the Arkansas Project

WDVE (local Pittsburgh FM station) was to have an interview this morning with one of the Trib staffers who was “in the room” with her and Scaife. Sadly had to miss it, probably nothing worthwhile was said, but it is quite the compelling (and disturbing) little drama in its own way.

BTW, they had Obama on as well (they generally do comedy and impressions, so at first I thought it was a send up), was gratified that they asked him at the end whether he thought they had done better than Gibson and Stephanopholous. (His reply was diplomatic and gracious.)

26

Michael Bérubé 04.23.08 at 12:02 am

What qualifies as a disability? Is there like an official list? What about something like Crohn’s disease?

Damn, the most difficult question in the world. Here’s how the ADA defines it:

The term “disability” means, with respect to an individual, (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or(C) being regarded as having such impairment.

This is nebulous, but I don’t think we can get rid of its nebulousness. Disability is nebulousness itself. Instead, if we’re thinking about disability and the ADA we need first to deal with the Supreme Court’s series of incredibly perverse decisions, some of which, as in Sutton v. United and Toyota v. Williams, held that plaintiffs were too disabled to work but not disabled enough to sue for relief. Whence this perversity? In brief: the Court has been obsessed with the disability status of individuals, and (just as important) reducing the number of potential plaintiffs under the Act, to the point at which it has ignored the question of whether any employment discrimination occurred. (Parenthetically but importantly, it’s quite possible to conclude that no discrimination occurred in those two cases; the Court, however, preferred other reasoning, arguing that the Sutton sisters’ disability — myopia — was “easily correctable,” and that Ms. Williams was able to brush her teeth despite her repetitive stress injury, and therefore not disabled enough to sue for having been fired from the Toyota plant. But I don’t see why the Court didn’t apply the job performance standard from Title VII of the Civil Rights Act and conclude simply that neither the Sutton sisters nor Ms. Williams were physically capable of doing those jobs. After all, in the case of Sutton, if a disability is that easily correctable, why not let the plaintiff correct the disability and apply for the damn job?) The broader point at issue here is that disability is profoundly contextual: significant cognitive disability will probably substantially limit a person’s major life activities, but deafness? well, there are any number of contexts — like reading, for example — in which it is no disability to be deaf. And, as we like to say in the disability studies biz, the “social model” of disability holds that in a world without stairs, wheelchair users would have a much easier time getting around. Crohn’s disease might well be a disability, in some contexts, though I have to admit that we need to think a lot more seriously about the relationship between the “social model” of disability and the messy details of chronic or degenerative disease.

I’m often asked about alcoholism and obesity, since these seem to hang out at the periphery of our definitions of disability — and because some people like to try to draw a bright line between conditions you can blame people for (up to a point!) and conditions you can’t. The idea being, of course, that an individual merits assistance if s/he has MS or Parkinson’s but not if she is too fond of donuts or rum (or both at once, right before bedtime). I don’t know what I think about this, myself, though if one agrees that alcoholism is a disease, and that people can have a genetic susceptibility to it, then one probably has to consider it a disabling condition — though, like Crohn’s, this would be a matter of degree (see “profoundly contextual,” above).

27

vivian 04.23.08 at 12:32 am

I’d like to second Laura’s call for non-school childcare availability for kids with disabilities. It is analogous to having a job. Lots of kids need more assistance, or a higher caregiver/kid ratio, to function well in after school programs. But with that help they can function as well as non-disabled kids. I’m even okay with “separate but equivalent” afterschool programs, or a scheme where parents or charities pay the incremental cost of extra supervision.

Michael, is there a chance you could get Harry to collaborate on a post about education theory/policy/ethics as relates to special needs kids? You two are great separately, but I imagine the interaction would bring out even more goodness.

28

Witt 04.23.08 at 1:48 am

This is absolutely terrific. I am ashamed to say I read and talk a lot of politics and had not seen anything about disability issues specific.

I’m curious — did you see anything specifically referencing the Social Security Ticket to Work program? My years-old understanding was that it was being implemented at a snail’s pace and was pitifully inadequate to boot.

But it seems like such a cross-partisan no-brainer. Let folks on SSI/SSDI have the opportunity to do a real amount of paid work, and don’t cut their benefits. It’s so much better to have the ability to be participating in the formal workforce!

29

Witt 04.23.08 at 1:50 am

Whoops, meant “specifically,” of course.

30

T. Paine 04.23.08 at 1:52 am

’m often asked about alcoholism and obesity, since these seem to hang out at the periphery of our definitions of disability—and because some people like to try to draw a bright line between conditions you can blame people for (up to a point!) and conditions you can’t.

Oddly, alcoholism/drug addiction aren’t themselves disabilities, but recovering from these are. You can lose your job because you are an alcoholic, but not because you are a recovering alcoholic. Go figure. Love the Supreme Court!

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Flamouse 04.23.08 at 2:23 am

19 and 26: Most people who have looked at it say that Crohn’s is not covered under the ADA; given past decisions, it seems unlikely that someone with Crohn’s (or any chronic or catastrophic disease) would meet the SCOTUS interpretation of the ADA criteria. As someone (else) with Crohn’s, I have zero faith that I would win an ADA claim. That hasn’t stopped me from using the ADA for leverage, or trying at least. It’s a problem.

One solution, apparently the most popular, is to leave people like us to the care of the Invisible Hands. Another solution, one that I am working on in a limited capacity, is legislation to extend ADA-like protections to those with chronic and catastrophic illness. It’s notionally called ACACIA – the Americans with Chronic And Catastrophic Illness Act. In DC, having a good acronym is half the battle (see “USA PATRIOT Act”). ACACIA would also address a lot of issues not covered by the ADA, regarding health care coverage, work leave, et cetera.

Of course, having a functioning health care system would address a great many of my concerns – but not all.

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Pliggett Darcy 04.23.08 at 3:44 am

T. Paine:

Alas, insofar as drug-dependent folks are concerned, that conundrum is one we can’t blame on the Court; it’s a part of the statute itself. See 42 U.S.C. § 12114(a) (people who’re currently using “illegal drugs” don’t count as having a disability).

With respect to alcoholism, things are a little more complicated. While current alcoholism can indeed qualify as a disability, alcoholics can lawfully be “held to the same qualification standards” as non-alcoholics. See 42 U.S.C. § 12114(c)(4). So, in the end, you’re right: they’re screwed too.

If I have my legislative history right, I believe we have Jesse Helms to thank for this statutory grotesquerie. Thanks, Jesse!

33

Chris 04.23.08 at 4:19 am

Rimmer: In which case we can remove him from duty as per Space Corps Directive 196156.
Kryten: 196156? Any officer caught sniffing the saddle of the exercise bicycle in the women’s gym will be discharged without trial? Hmm. I’m sorry, sir, that doesn’t quite get to the nub of the matter for me.

Rimmer: Kryten, you’re forgetting about Space Corps Directive 1742!
Kryten: 1742? “No member of the Corps should ever report for duty in a ginger toupee.” Well, thank you for reminding me about that regulation but I can’t see how it is pertinent to our present situation.
Rimmer: 1743, then!
Kryten: Oh, I see. “No registered vessel should attempt to transverse an asteroid belt without deflectors.”
Rimmer: Yes! God, he’s pedantic!

Rimmer: Need I remind you of Space Corps Directive 34124?
Kryten: 34124? “No crewmember with false teeth should attempt oral sex in zero-gravity”?

Rimmer: That’s it. I’m invoking Space Corps Directive 68250.
Kryten: 68250? But sir, surely that’s impossible without at least one live chicken and a rabbi.
Rimmer: Forget it. Forget I was ever born.
Kryten: But, sir, I’m very happy to perform the ceremony, but I’m absolutely bewildered as to how sacrificing poultry might clear up the screen problem.

Rimmer: [to a Rogue Simulant] I don’t know who you are, but boarding this vessel is an act of war, ergo we surrender! And as prisoners of war, I invoke the All Nations Agreement article number 39436175880932/B.
Kryten: 39436175880932/B? “All nations attending the conference are only allocated one car parking space?” Is that entirely relevant, sir? I mean, here we are in mortal danger and you’re worried about the Chinese delegates bringing two cars.

Quite so.

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Patrick 04.23.08 at 6:55 am

This is why I miss your windy old blog.

At Iowa, my sense is that while I may not be directly obligated to accommodate students with disabilities, my contract requires that I work with the disabilities support office. This means that the students have to have contacted the office, done the proper documentation, and worked with the office on a plan. I’ve been in meetings with the director of the office, and he seems on fire for the students he works with and the individual counsellors/advisors know the students I’ve worked with quite well.

Still, there’s an onus on the students to recruit the office’s help, and some of them are just getting to the point where they realize they need help. The stigma doesn’t help them there. So I know there are students who struggle who don’t get the help until too late. Or latish, anyway.

And of course, this doesn’t begin to chart the moral and professional obligations we have to our students, regardless of the letter of the law.

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woland 04.23.08 at 8:18 am

Wow – thank you for this. I followed your link from the cluster$%#! at Pandagon, and I’m very glad I did. I haven’t seen anyone comment on the candidates’ disability policies yet, and it’s an issue I care about very much (I worked with people with developmental disabilities for about a decade, was a university instructor and tutor who spent a lot of time working with students with autism spectrum ‘disorders’ and learning/cognitive disabilities, spent significant time working with Deaf students, and then went to law school when adjuncting in Poli Sci left me unable to pay for little luxuries like food and shelter, bringing my own physical and learning disabilities along with me.) It’s a real shame that the candidates’ positions on this haven’t attracted wider attention.

Alcoholism and other addictions have an ambiguous status under Canadian disability law as well, though chronic health conditions, including mental health issues like depression,are well recognised. We have fewer of the health care issues, of course (for all its flaws, I would never, ever trade the Canadian health care system for yours. really, this is one of the things that makes us such a smug, self righteous little people). But disability is going to become an increasingly important issue as the aging population realises it’s mostly “temporarily abled.” I’m very glad you brought it up.

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James Wimberley 04.23.08 at 9:23 am

A footnote to this great post and thread: I heard once from a British specialist on placing disabled graduates in employment that once a company can be persuaded to make the effort and provide the facilities needed to recruit one, it finds that the new worker stays loyal – since alternative opportunities are fewer. So disabled access to employment costs less than it looks at first sight, until it’s universal.

Apparently the best place to work in Cambridge University if you are in a wheelchair is the Mathematics Institute. Stephen Hawking you see.

PS: Preview still broken.

37

Stuart 04.23.08 at 10:22 am

The subject is disability, people. It’s about our common frailty and vulnerability. Get used to it.

Isn’t this part of the newspeak though – talking about disability equates to welfare scroungers, so you have to reframe any disability related project in other terms, like ‘think of the children’, or ‘support the troops’, or the like.

38

salient downs 04.24.08 at 1:44 am

talking about disability equates to welfare scroungers

Wow, a concern troll for the ages. That took a full step into genuinely offensive.

Call me an optimist, but I don’t think ‘people with disabilities’ evokes the same sentiment as ‘people on welfare’ even amongst those individuals who recoil at the sound of that W-word and would openly embrace the use of the word ‘scrounging’ in that context. There may be a few truly sociopathic types who equate the former with the straw-man latter, but those sociopaths are rightfully marginalized and they don’t significantly influence the discourse.

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Michael Bérubé 04.25.08 at 2:58 am

I didn’t read stuart @ 37 as a concern troll. Quite the contrary — he seemed to be commenting as an ally, acknowledging why, in a country with a weak social welfare tradition, one has to speak (in “newspeak”) about disability in code.

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BrianZ 04.25.08 at 12:27 pm

20, 24

I am not a lawyer, but I have spent some time helping people with SSI cases.

The ADA and the Social Security Act do not converge at all; they offer contrary definitions of disability. People covered under the ADA are presumed capable to function fully in society — most significantly, they are presumed able to work if reasonable accommodations are made.

To be found disabled by Social Security, one must prove one’s incompetence. The first rule is that the claimant must not be engaged in “Substantial Gainful Activity.” SGA, in 2008, is $940 a month. The remainder of the process of proving disability is showing that there is no way the claimant could get a job making that much money. (And as the prize, you get a maximum benefit of $637 a month.)

Here’s a simple summary of the Social Security process.

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Misha 04.26.08 at 1:25 am

As I just learned from the YouTubes, David Axelrod, who is Obama’s campaign manager, has a severely epileptic daughter — on a recent segment on the campaign on CBS, he called her disability “the struggle of [his and his wife’s] lives.” He had worked with Hillary Clinton’s senatorial campaign in 2000 because he felt she was a good voice for the disabled as well.

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mitzi 04.26.08 at 6:42 pm

There’s another important difference that I spotted between the Clinton and Obama statements on autistic spectrum disorders. Clinton’s has some language that as someone who works in the field I would say points towards ABA and/or medication as the “approved” interventions. This is not a good thing. It also makes the common mistake of assuming we are going to “fix” autism, so it’s all about children.
Obama’s doesn’t include the language that makes me uneasy, but does include support for adult services to help people with ASD lead independent lives. Much preferable.
McCain’s position? It’s caused by vaccines, right?

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zerovoices 04.26.08 at 6:46 pm

GREAT review of an important issue neglected so often, but with potential to effect anyone.
Your detailed review of each candidate is an example of why I’m supporting Barak Obama. With two of the candidates having thought about such ethical issues, it comes down to who I hope will be able to lead better. Using the ability to manage and lead, (Yes, I do believe it’s a job interview) . . . as time continues, Barak Obama seems to show organizational leadership ability, in the way his campaign is being run. H. Clinton seems to show the opposite; with problems and disagreement within her campaign organization, I have become convinced, she would have problems running the White House and our country.

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Michael Bérubé 04.26.08 at 9:57 pm

It also makes the common mistake of assuming we are going to “fix” autism, so it’s all about children.

Good point, Mitzi — and I should have noted that I’m also uncomfortable with the idea that we’re going to “fight” autism. It ain’t smallpox. But as I noted when one of my students pointed out that we have a 5K “Autism – Race for the Cure” event here in central PA, I do acknowledge (with a sigh) that it’s soundbitier to speak of “fighting” autism and “racing for the cure” than to speak of “living with autism” and “racing for the reasonable accommodation.”

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ACitizenProSe 04.26.08 at 11:09 pm

Thanks for this great post on the candidates’ positions on disability — and particularly on the invisibility of disabled people in political discourse.

You mentioned ADA-realted issues, but I’d like to bring up the fact that the Fair Housing Act is *supposed* to protect disabled people from discriminatin in housing, and extend ADA-like protections — such as ‘reasonable accommodations’ — into rental housing.

It’s supposed to — but it doesn’t. The GAO published several reports on HUD/FHEO non-enforcement, as did the National Council on Disability (NCD’s report ‘Reconstructing Fair Housing’, is available online; GAO reports can be found by searching their website).

Only thing is — foolish me! — I didn’t read those reports before bringing a Fair Housing Act disability-related civil rights conplaint against my HUD Project-based Section 8 landlord. After more than a year, the state enforcement agency has still managed to keep from entering any meaningful evidence into my case file. That didn’t prevent them from arriving at a baseless decision, and from otherwise depriving me of rights (such as due process and equal access to justice) and attempting to dupe me into forfeiting additional rights (such as free speech).

I’ve recently (ie last week) begun to document my experiences with HUD’s Fair Housing Act non-enforcement at http://acitizenprose.wordpress.com . It’s only a first step , but I hope to contribute to the welfare of other disabled people by developing this website as a ‘witness’ to HUD’s failure to enforce the Fair Housing Act.

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CityzenJane 04.27.08 at 9:57 pm

Terrific – if long post.

I’ve always said – we are all one step away from being disabled, either by age, by accident, disease or war – Or by our relationship to our loved ones one step away from poverty – because that’s how it stands in America.

For some reason we all think we are impervious, yperfect and forever young.

Our policies reflect this basic total denial of our collective vulnerability and interdependance.

But we go on pretending that we are rugged individuals perpetually able to conquer all in our paths.

Even to the degree to which some of us refuse to acknowledge the impact of disabilities we ourselves have!

And as caretaking is women’s work it seems – it t is perpetually set at ZERO monetary value. People wonder why women’s wages are lower, it is precisely because we do and are expected to be the one to take the more flexible job, to run home when someone is sick, to take the long leaves of unpaid work – THAT is why.

As long as we pretend that we are complete and free individuals making free choices – or allow ideologues to frame our lives that way – the problem will not be understood much less addressed.

Anyway – thank you again for a great post!!

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