DISABILITY RIGHTS "There is not one disabled American alive today who has not experienced some form of discrimination. Of course, this has very serious consequences. It destroys healthy self-concepts, and it slowly erodes the human spirit. Discrimination does not belong in the lives of disabled people." - I. King Jordan, President of Gallaudet University, testifying before Congress in support of the proposed Americans with Disabilities Act, 1989 People with disabilities are still not part of the American dream. They are the poorest, least employed, and least educated minority in America. And, at 49 million, they also are the largest. Too often, people with disabilities have been treated as second-class citizens, shunned and segregated by physical barriers and social stereotypes. They have been discriminated against in employment, schools, and housing, robbed of their personal autonomy, and, in too many instances, hidden away and forgotten by the larger society. Justice Thurgood Marshall once wrote that the plight of people with disabilities reflected nothing less than a "regime of state mandated segregation... that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow." City of Cleburne v. Cleburne Living Center (1985) Data collected in the late 1980's reveal the injurious effects of this second-class status: Fifty percent of adults with disabilities had household incomes of $15,000 or less, compared with only 25% of Americans without disabilities. Two-thirds of Americans with disabilities between the ages of 16 and 64 were unemployed. Sixty-six percent of these Americans wanted to work. While 56% of all students go on to college or junior college, only 15% of students with disabilities participate in post-secondary education. America has a shameful history of cutting off people with disabilities from the rest of society by sequestering them inside their homes, or consigning them to isolated, often squalid institutions. In Hawaii, for example, thousands of people with Hansen's Disease (leprosy) were permanently quarantined to isolated islands, cut off from their families and their livelihoods. This forced separation, which had no public health justification, continued well into the 1950's. In 1972, a television news reporter shocked the nation with film footage of the filthy and dehumanizing conditions in which 5,400 mentally disabled children languished in New York's Willowbrook "School." Although some progress has been made, too many Americans with disabilities are still institutionalized -- even though the care they need can be provided within their communities. Historically, people with disabilities have found little support in the country's legal institutions. The Supreme Court's callous disregard for their basic human rights was made painfully clear in a 1927 decision in which the Court upheld the forced sterilization of a woman whose mother and daughter were both mentally retarded. People with mental disabilities were, the Court said, a "menace" who "sap the strength of the state." Society would be wise to "prevent those who are manifestly unfit from continuing their kind.... Three generations of imbeciles are enough." Finally, things began to change with the advent of the disability rights movement. Inspired by the civil rights struggles of the 1960's, activists pressed for full legal equality and access to mainstream society. Through lobbying and litigation, laws were passed and rights established; public education and advocacy were used to promote reason and inclusiveness rather than fear and pity. National heroes and celebrities joined grassroots activists to force disability rights issues onto the public agenda. World famous classical violinist Itzhak Perlman, who has polio, will perform only in concert halls that are fully accessible. Former "mouseketeer" Annette Funicello has become a vocal spokesperson for people with multiple sclerosis. But although significant strides have been made, there are still many battles ahead for people with disabilities in their struggle for equal rights. HOW IS "DISABILITY" DEFINED BY LAW? Congress defines disabilities in this way: current disabilities are physical or mental impairments that "significantly limit one or more major life activities." The previously disabled are people who have been diagnosed with conditions like cancer or manic depression, but are either fully recovered from or functioning with the condition. Finally, there are those who are perceived as having a disability but who are fully abled, such as burn victims and obese people. This third group is often discriminated against based on "lookism." People whose mental disorders are associated with criminal behavior, and drug addicts and alcoholics who are still engaged in substance abuse are not protected under the Americans with Disabilities Act. FOCUS ON THE ADA The Americans with Disabilities Act (ADA) of 1990 is the most comprehensive civil rights law in a generation. Based on Congress' finding that people with disabilities have been "subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness," its purpose is to extend to people with disabilities the same legal protections against discrimination available to women and racial and religious minorities under the Civil Rights Act of 1964. The ADA outlaws discrimination in public and private employment, public services, transportation, communications technology and public accommodations (hotels, restaurants, stores, museums, etc.) The ADA also requires employers to make reasonable modifications in facilities and equipment (depending on the size and resources of the employer) that will enable people with disabilities to perform their jobs. In addition, the Act prohibits private businesses from discrimination against customers with disabilities and requires them to build all new buildings in an accessible manner. The ADA requires private businesses to provide modifications that will enable people with disabilities to enjoy the goods and services being offered. In the years since its adoption, the ADA has improved the lives of millions of disabled people. According to the Census Bureau, the percentage of disabled Americans with jobs climbed from 23.3% in 1991 to 26.1% in 1994, representing an increase of nearly 800,000 jobs. A 1996 study by the United Cerebral Palsy Association showed that 96% of a sample of disabled Americans surveyed said the ADA had made a positive difference in their lives. OTHER LAWS THAT PROTECT THE RIGHTS OF PEOPLE WITH DISABILITIES Improved access and mobility were guaranteed by the Architectural Barriers Act of 1968; the Urban Mass Transportation Act of 1964 (amended in 1970); the Amtrak Improvement Act of 1973 and the Air Carrier Access Act of 1986. Equity in education, housing and civic life were boosted by the Individuals with Disabilities Education Act of 1975; the Developmental Disabilities Assistance and Bill of Rights Act of 1975; the Civil Rights of Institutionalized Persons Act of 1980; the Voting Accessibility for the Elderly and Handicapped Act of 1984; the Protection and Advocacy for Mentally Ill Individuals Act of 1986; the Fair Housing Act Amendment of 1988 and the Civil Rights Restoration Act of 1989. Along with Section 504 of the 1973 Rehabilitation Act requiring non discrimination on the basis of disability in all aspects of programs or activities receiving federal funds, the above-mentioned laws were stepping stones to the landmark 1990 Americans with Disabilities Act. (See sidebar.) LEGAL VICTORIES Armed with their own civil rights laws, and with the assistance of the ACLU and other advocates, people with disabilities have won some important legal victories. Here are just a few examples from the ACLU's legal docket: * The right to enter the courthouse: Betty Livingston of North Carolina has multiple sclerosis and uses a wheelchair. In 1996 she won her ADA claim against the local courthouse for refusing to allow her to use the only wheelchair accessible door into and out of the courtroom because it was "reserved" for lawyers and court personnel. * Ending discrimination in professional licensing: In 1994, four young law graduates successfully charged that the Florida State Bar application, which required the disclosure of information about any mental health treatment that applicants received at any point in their lives, violated the ADA. * A non-discriminatory drug test for an athlete and cancer survivor: In 1994, Kevin Hall, a survivor of testicular cancer, successfully invoked the ADA to challenge the Olympic Committee's decision to ban him from sailing. The ban was based on the fact that he tested positive for externally administered testosterone, which did not actually enhance his performance, but which was critical to his survival. * The right to serve on a jury: In 1993, James Bradley Quinn, a resident of Little Rock, Arkansas, brought a successful ADA challenge to a state law requiring the exclusion of deaf people from jury service. At the hearing in federal court, Quinn said though an American Sign Language interpreter that, "The deaf and hard-of-hearing should never accept limitations on their goals." * Public parks cannot discriminate: In 1994, Eddie Dzura, a 33-year-old man who has Down syndrome, was asked a series of humiliating questions in front of a crowd of amusement park patrons. He was then refused admission to a merry-go-round because he had a mental disability. He and his father filed a successful lawsuit under the ADA, and the park was forced to change its discriminatory practice. * Obesity not a job disqualification: In 1993, Bonnie Cook, who was denied state employment solely because of her obesity, was victorious in her case against the State of Rhode Island. A federal appeals court concluded: "In a society that all too often confuses 'slim' with 'beautiful' or 'good,' morbid obesity can present formidable barriers to employment... this is exactly the sort of employment decision that the Rehabilitation Act seeks to banish." * Fair housing is a right: In 1990 the Fairfield, Connecticut Town Council rejected Lucie McKinney's application to open a residence for homeless people with AIDS. She decided to fight back and won her lawsuit charging that the town had violated the ADA and the Fair Housing Act. PEOPLE WITH MENTAL DISABILITIES Some of the earliest legal challenges to unfair discrimination and involuntary confinement were won by people with mental disabilities. This group numbers in the tens of millions in this country, and includes both the mentally retarded and people with psychiatric disorders. Objects of both fear and contempt, the mentally disabled have had to fight long and hard for recognition of their civil rights. A mere generation ago, the mentally ill could be involuntarily committed to state institutions for long periods of time -- sometimes decades -- with no right to court review of their confinement, and with no right to treatment. On any given day in the 1950s, the institutionalized population in America numbered some 559,000 people (today the number is about 100,000). While hospitalized, mental patients were robbed of their right to personal autonomy. They could be forced to work and to submit to unwanted medical procedures, including medical experiments. Their contact with the outside world could be completely curtailed. They could be placed in seclusion or subjected to physical restraints on the whim of an attendant. People with mental retardation did not fare any better. They were viewed as untrainable and as a potential danger to society because if permitted to propagate, they would beget more "imbeciles." People with mental retardation were also confined by the millions in large custodial institutions. Today, as a result of the self-advocacy movement and a series of constitutional test cases, people with mental disabilities have many more rights than they used to, including: * the right not to be confined unless they constitute a danger to themselves or others; * the right to a court hearing to contest an involuntary commitment; * the right to a lawyer during commitment hearings; * the right to refuse medication; * the right to "minimally adequate" treatment and training; * the right to safe and secure conditions, including food, shelter, clothing and medical care. But in spite of much progress, people with mental disabilities still face abuse, coercion, and discrimination based on stereotypes and misconceptions. ACLU Handbooks on the Rights of Americans with Disabilities Several of the ACLU's "Rights Of" Handbooks contain useful information for Americans with disabilities. All of these editions are published by Southern Illinois University Press and can be found in the legal section of many bookstores or through the ACLU at 800-775-ACLU. The Rights of People With Mental Disabilities: The Basic ACLU Guide to the Rights of People with Mental Illness and Mental Retardation, 1996. The Rights of Older Persons: A Basic Guide to the Legal Rights of Older Persons Under Current Law, 2nd edition, 1988. The Rights of People who are HIV Positive: The Basic ACLU Guide to the Rights of People Living with HIV Disease and AIDS, 1996. The Rights of Patients: The Basic ACLU Guide to Patient Rights, 1989. ( Source for late 1980's data: Jane West, ed., The Americans with Disabilities Act: From Policy to Practice, 1991.) Copyright 1996, The American Civil Liberties Union