Blogs > Cliopatria > Failures of Law and Justice

Jan 12, 2004 8:44 am


Failures of Law and Justice



The Americans with Disabilities Act was supposed to do for handicaps what the Civil Rights Act did for race. And there are ways in which the doctrines of"reasonable accommodation" and"equal access" have worked fabulously, and not just for those people who fall into the traditional category of disabilities: wheelchair accessibility, for example, is also a boon to anyone with limited mobility, including stroller-pushing parents and book-laden scholars; audio cues and feedback can be used by blind and sighted alike; and there will be more people struggling with physical limitation related to age as life spans extend. Of course there are gaps (for example, the powered doors in my floor of the building where I work are nearly perpetually broken) and there are costs (less than you think, if you plan for this stuff in advance) and there are needs to be balanced (wheelchair-accessible curb cuts, for example, can make it harder for blind cane-users to distinguish sidewalk from street; zero-emissions electric cars run nearly silently, which can also be a problem for the visually impaired.). Struggling with these issues and acting on them, though, is a sign of progress for all of us.

But the ADA is at a turning point. The Supreme Court's recent decisions in favor of states' rights, including limitations on the applicability of the ADA, have made it possible for states, the representatives and servants and protectors of the people, to ignore reasonable accommodation and equal access. The arguments being used against the ADA are the same ones used against civil rights legislation, plus a few fiscal whinings. If the Supreme Court continues in this vein, they will eventually be forced to repudiate precedents like Brown v. Board of Education as unwarranted federal intrusions into state sovereignty, and if the Fourteenth Amendment (Equal Protections) doesn't stop us soon, we're headed back to the Articles of Confederation, 21st century style.

Or maybe even further. I recently read a satire (forwarded courtesy of my father, from whom I get a lot of my sense of humor) claiming that the President declared judges who ruled against the US in the Jose Padilla case "to be enemy combatants ... and sent to the Marine base in Guantanamo, Cuba to be detained until the War on Terror is concluded." What bothers me about this is that on reflection it isn't that funny because it's too plausible. While the legislative branch of government is being cut down by the judiciary (which is itself being politicized and diminished in stature), the executive branch of our government is acquiring the power to be arbitrary, nearly unchecked in the usurpation of judicial and legislative authority. Combine that authority with a Manichean worldview, and I get nervous. Perhaps I'm overreacting because I'm reading too much Liberty and Power, but I think we need to carefully consider our options and our intentions before we muck with the most successfully balanced system of government in human history.


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Jonathan Dresner - 1/12/2004

You're right that there are questions about the nature of disability with regard to personality disorders, addiction, obesity and a few other categories. And I'm not going to argue those one way or the other. But the denial of access and accomodation to people with visual or aural impairments, or significant mobility restrictions should be clearly and simply seen as a violation of both the letter and the spirit of the ADA, the 14th amendment and common decency.


Oscar Chamberlain - 1/12/2004

I see two problems here. One is indeed the Court, but the other may be aspects of the law itself.

Problem 1 is this Court's assumption of the right to determine if Congress has correctly identified a group as having been the victim of discrimination. If they decide yes, the 14th amendment trumps states' rights, if they decide no, then states rights likely wins.

This is remarkably similar to the old "Rule of Reason" test for regulation of business, particularly in regard to treatment of employees.

Ironically, the countering move by supporters of laws like the ADA (and by groups supporting gay/lesbian rights) is very similar to the "Brandeis Briefs" of the early 20th century.

The Brandeis Brief tactic basically is this: you want reason; we got reasons. We will document the situation so thoroughly that no "reasonable" justice can reject the law. (And they all were reasonable men)

We're seeing the same thing today. The court has made clear that it wants laws redressing discrimination to be based on voluminous reseach. The more research, the more likely a favorable outcome. (Although not involving congressional acts, the recent cases on gay rights reflect similar tactics by the plaintiffs).

This begs the question of why the Court is so hostile to the ADA. Part of it may simply be the Court majority's business/states' rights orientation. Part of it may be that the problems the disabled face was not that well documented by Congress when the law was first passed, but I don't think that is the case.

However, and here we get to probem 2, some of it may be the ADA's vagueness in defining who is disabled and therefore entitled to its benefits.

While the boundaries of any population group are nebulous, defining who is disabled has posed a major challenge. The federal courts have gotten a number of cases that bring up two questions: "is an action discriminatory?" and "is the person a member of the group protected under the law." That's a lot tougher than simply answer the first question.

Even a Court majority sympathetic to the ADA and unsympathetic to states' rights would be having some problems.

This does not mean that I oppose the ADA. I think it has done grand things. Nor do I like the court majority's revival of the 10th amendment, which I do not think is sound.

But when Sandra Day O'Connor stated that the ADA was not well written, she might have been telling the truth. And that is something Congress, and the ADA's supporters, should consider.

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