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 a single legislative act, Congress recognized that society’s institutions and structures have been designed without people with disabilities in mind, and that justice requires society to make changes today to include them fully in the life of the community. Senator Tom Harkin’s label for the statute - the Emancipation Proclamation for people with disabilities - seemed entirely apt.
Almost twenty years later, matters have not worked out as disability rights advocates had hoped. In a series of decisions, the Supreme Court has read the statute’s provisions very narrowly. In all federal courts, ADA plaintiffs lose their cases at astounding rates - the only litigants less successful than ADA employment plaintiffs are prisoner plaintiffs - who are rarely even represented by counsel. The statutory provisions that require businesses to be accessible are wildly underenforced. And the employment rate for people with disabilities has remained stagnant at best.
As the bleak picture of the post-ADA world has become clearer, a conventional wisdom has emerged among many disability rights supporters. The ADA was a statute with great promise, they argue, but it has been betrayed - by judges who do not understand the principles of the disability rights movement, and by a society that has engaged in a backlash against that movement. In that conventional wisdom, there is nothing wrong with the ADA - or at least nothing wrong that a more enlightened judiciary and populace cannot cure. The conventional wisdom has led many disability rights advocates to focus their energies on lobbying for measures like the recent ADA Amendments Act, which explicitly urges the courts to return to the supposed original intent of the ADA.
There is truth in the backlash story, but the argument is vastly overstated. Although measures like the ADA Amendments Act are worthy, they are no magic solution. The general public has been resistant to the ADA, and judges have read the statute more narrowly than they might have. But it is tendentious to call those results a betrayal of the principles of the disability rights movement. Rather, to a large extent they reflect contradictions and tensions within the ideas of the disability rights movement itself. In the years before the enactment of the ADA, many disability rights advocates articulated ideas that are consistent with many (though not all) of the restrictive readings the Supreme Court later put on the statute. Rather than betraying “the” principles of the disability rights movement in these cases, the Court has simply chosen one of a set of competing principles articulated by movement participants. One purpose of this book is to draw out the complexities and pluralism of the disability rights movement, and to show how a richer picture of the movement requires a modification of the standard backlash narrative.
The backlash story is overstated in another respect as well. Although the ADA has had little if any positive effect on the employment rates of people with disabilities, that result simply cannot be attributed to the Court’s decisions that have read the statute narrowly. As this book shows, the restrictive decisions have essentially confined the statute’s coverage to those people with disabilities who need reasonable accommodations to enter or stay in the workforce - precisely the group one would want to target if one were seeking to use the ADA as a tool to improve employment rates for people with disabilities. The statute’s failure to improve those employment rates, this book contends, stems from something more fundamental - the inherent limitations of antidiscrimination laws in eliminating deep-rooted structural barriers to work. Even the ADA’s requirement of reasonable accommodation, which seems so revolutionary, is far more like traditional antidiscrimination requirements than is commonly recognized. This book aims to highlight the continuities between the ADA and earlier antidiscrimination statutes, and to show why the statute, even if broadly construed, cannot be expected to achieve integration and empowerment for people with disabilities on its own.
The backlash narrative has also had a harmful effect on the focus of disability rights supporters, particularly those in the academy. Instead of grappling with the difficult questions of how best to achieve integration and empowerment for people with disabilities in a world where antidiscrimination statutes have only limited effect, too many academics have been satisfied simply to bemoan the limiting interpretations the Supreme Court has placed on the ADA. This book criticizes a number of the Court’s key ADA decisions as well. But a too-ready assertion of backlash or betrayal distracts attention from the important work that the disability rights movement itself still needs to accomplish: the work of mediating, if not resolving, the tensions among the goals articulated within the movement’s own ranks, and the work of coming up with policy proposals to go beyond the ADA in achieving those goals. This book seeks to contribute to that crucial discussion.
Available at: http://works.bepress.com/samuel_bagenstos/29/