Creating Disability Rights: The Challenge for Disabled Americans*

Article excerpt

Jacobus tenBroek

Disability Law Symposium

Although the Fourteenth Amendment to the Constitution of the United States declares that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,"1 and although Section Five of the amendment declares that Congress has the power to enforce it by "appropriate legislation," what equality before the law means has been the subject of debate from the time of the beginning of our nation, and it remains a matter for interpretation by the courts. In considering equality before the law for disabled individuals, it is worth pondering whether the courts have been a help or a hindrance. If they have not been a help, it is worth considering what steps are required to change the judicial point of view.

In 1973, Section 504 of the Rehabilitation Act, 29 U.S.C. §794, became law. This section declared at the time of enactment that no otherwise qualified handicapped individual could be denied the benefits of or participation in any program or activity receiving federal financial assistance. In 1985, the Supreme Court decided that this section of the rehabilitation act did not authorize individuals to recover damages against state institutions because claims for such damages were barred by the Eleventh Amendment.2 Although the decision of the Supreme Court was later changed by congressional action in 1986, Justice Powell had declared that a state would be liable for damages only if it had waived sovereign immunity or Congress had authorized suits for damages pursuant to its power under the Fourteenth Amendment.3 When the Americans with Disabilities Act (ADA) was enacted in 1990, Congress specifically included a reference to its enforcement power under the Fourteenth Amendment, "to invoke the sweep of congressional authority."4 This should have ensured the broadest interpretation of enforceability for the act. However, in 2001 Chief Justice Rehnquist, writing for the Supreme Court, said that the Eleventh Amendment bars recovery of damages against states under the ADA because Congress had made an insufficient finding of a pattern of discrimination by the states against the disabled to invoke constitutional authority for abrogating sovereign immunity.5

In the history of the treatment of blind Americans, many states have adopted laws prohibiting blind Americans from serving on juries.6 Federal law permits the disabled to be paid less than the minimum wage today.7 In the interpretation of social welfare legislation, some states have required blind people to undergo sterilization operations if they wanted to receive public benefits or employment opportunities in certain state-run institutions.8 The graduation rate for blind students from high school currently is at approximately 45%.9 The unemployment rate for blind people currently is at approximately 70%.10 More than 5,000 blind people are employed in sheltered workshops for the blind, where they have rarely had opportunities for advancement into management.11 Until the mid 1970s, employees in these sheltered environments were prohibited from joining unions or exercising the rights of collective bargaining.12 The inequities for blind workers in the sheltered workshop system are sufficiently long-standing and so thoroughly incorporated into the daily experiences of blind people that folk songs have been written. Two well-known examples are the Blind Workshop Blues and I've Been Working in the Workshop (sung to the tune of I've Been Working on the Railroad). One experience these types of songs highlight is the predicament of many blind workers: that their bosses cannot raise their wages lest the workers lose their Social Security.13 However, no pattern of discrimination exists, says the Supreme Court.

In the same case in which Chief Justice Rehnquist determined that no pattern of discrimination had been found, he implied that disabled individuals are by nature less capable of performance than others. …