Ageism and the American Legal System
Eglit, Howard C., Generations
More elders will be in the system at every level.
By now, we all have been subjected to a surfeit of predictions, ruminations, and warnings about the demographic "pig in the python": the aging baby boomers. Given the data, it seems perfectly reasonable to conclude that we can expect to see significant increases in the numbers of older people directly involved in the legal system-as judges, lawyers, litigants, witnesses, law enforcers, legislators, and more. Age bias "ageism"-is already operative in the system and almost certainly will continue to be so. What role will it play in a legal regime populated by enhanced numbers of older people?
AGEISM OR OLD-AGEISM?
Before any further discussion, however, one must distinguish between "ageism" and "oldageism." Ageism is commonly understood as a malign mechanism doing harm just to the old. Indeed, the integral linkage of ageism and old people was set forth when the term was coined by Butler (1975):
Ageism can be seen as a process of systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this with skin color and gender. Old people are characterized as senile, rigid in thought and manner, old-fashioned in morality and skills. . . . Ageism allows the younger generations to see older people as different from themselves; thus they subtly cease to identify with their elders as human beings.
Butler, Palmore, and others have articulately and convincingly established that a slew of undeserved, harmful, negative stereotypes and images are associated with older people (Palmore, 1990; Eglit, 2004; see also Butler, this issue, and Palmore, this issue). Nonetheless, the foregoing analogies that Buder drew to racism and sexism, while effective at an emotive level, are from the lawyer's perspective misleadingly inexact. How so?
For one, there is an implicit erroneous assumption that ageism equates with racism and sexism because these vices all afflict only those who hold minority status or who are less powerful in our society-the old, racial minorities, and women. In fact, race-based adversity can be experienced by whites just as well as blacks, and sexism can afflict men just as it does women. Examples are readily available. Alan Bakke, a white male, won his lawsuit before the U.S. Supreme Court in 1976 when he challenged on both constitutional and statutory grounds a state medical school's denying him admission even as it accepted minority applicants with lesser standardized scores (Regents of University of California v. Bakke, 1978). More recendy, two white applicants denied admission to the University of Michigan because of a similar program won their 2003 Supreme Court case, based on the Fourteendi Amendment's Equal Protection Clause (Gratz, 2003). Likewise, mentypically (and understandably) thought of in American society as being the perpetrators rather than the victims of sexism-have successfully secured protection under both the Equal Protection Clause (Craig, 1976) and Title VTI of the Civil Rights Act of 1964 (Oncale, 1998).
Racism and sexism can afflict anyone, given the right (or wrong) circumstances. That same universality applies in the case of ageism: Age can be, and is, used as a basis for generating stereotypes and imposing treatment both when the targets of such stereotypes or treatment are old (as Buder would have it) and when they are not old. And so it is bodi fair and accurate to label as victims of ageism the millions of people who do not receive federal healthcare coverage because they are younger than 65 years oldthe age of Medicare eligibility. Likewise, albeit at a more mundane level, the is-year-old ineligible for a driver's license for being too young also is subjected to ageism.
The second point that is relevant in correcting the popular, but too narrow, view of ageism concerns the generally accepted notion that agebased bias is an unadorned evil. …