Creating Disability Rights: The Challenge for Disabled Americans*

By Maurer, Marc | Texas Journal on Civil Liberties & Civil Rights, Fall 2011 | Go to article overview

Creating Disability Rights: The Challenge for Disabled Americans*


Maurer, Marc, Texas Journal on Civil Liberties & Civil Rights


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Creating Disability Rights: The Challenge for Disabled Americans*
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.