Backlash Against the ADA: Reinterpreting Disability Rights

The ADA and the Meaning of Disability

Kay Schriner and Richard K. Scotch The ADA and the Meaning of Disability For nearly a decade, the Americans with Disabilities Act (ADA)1 has been the main protection for people with disabilities against discrimination in employment, public accommodations, public transportation, and telecommunications .2 The act, approved in 1990 by bipartisan majorities of 377 to 28 in the House of Representatives and 91 to 6 in the Senate,3 is a comprehensive statement of public policy: People with disabilities should not be unfairly excluded from employment, public accommodations, and other aspects of public life, and the federal government should act to protect them.4 One might expect that if the ADA represented a consensus in 1990, it would still enjoy widespread support today, and in fact, there have been no serious attempts in Congress to repeal or signi‹cantly limit the act. However , while popular criticism of the ADA persists,5 the legal system has become the primary arena for challenges to the ADA’s broad focus and underlying assumptions. Complaints ‹led under the ADA have been making their way through the administrative agencies responsible for implementation and the courts for several years now, and since 1999, the Supreme Court has issued several key decisions concerning the ADA, some of which involve the act’s de‹nition of disability. In this essay, we suggest that much of the larger disagreement over the Americans with Disabilities Act can be characterized as a clash of perspectives about the meaning of disability. Disability as a Sociopolitical Construct Opinions about the Americans with Disabilities Act depend to a large extent on how one de‹nes disability and the nature of the problems faced by people who have disabilities. The ADA was the culmination of a two-decade shift in federal disability policy.6 For over a hundred years, disability has been de‹ned in predominantly medical terms as a chronic functional inca164 pacity whose consequence was functional limitations assumed to result from physical or mental impairment.7 This model assumed that the primary problem faced by people with disabilities was the incapacity to work and otherwise participate in society. It further assumed that such incapacity was the natural product of their impairments, and to some extent their own “secondary” psychological reactions to their impairments.8 The corollary to this assumption was that the role of government in assisting people with disabilities was both to provide ‹nancial support to this deserving group, who could not support themselves through no fault of their own, and to help in the repair and rehabilitation of their damaged bodies and minds and any psychosocial incapacity accompanying the damage.9 In the late 1960s, a fundamental transformation occurred in federal disability policy that rejected a primarily medical/clinical model of disability and substituted a sociopolitical or minority group model.10 Under this model, people with disabilities may be seen as a minority group subject to unfair discrimination, and the role of government is to protect their civil rights to political, economic, and social participation by eliminating that discrimination.11 In such a formulation, the opportunities accorded people with disabilities are limited far more by a discriminatory environment than by their impairments. In the sociopolitical model, disability is viewed not as a physical or mental impairment, but as a social construction shaped by environmental factors , including physical characteristics built into the environment, cultural attitudes and social behaviors, and the institutionalized rules, procedures, and practices of private entities and public organizations. All of these, in turn, re›ect overly narrow assumptions about what constitutes the normal range of human functioning.12 Thus, the consequences of physical and mental impairments for social participation are shaped by the expectations and attitudes of the larger society. Michael Oliver, a leading British disability studies scholar, writes: All disabled people experience disability as social restriction, whether those restrictions occur as a consequence of inaccessibly built environments , questionable notions of intelligence and social competence , the inability of the general population to use sign language, the lack of reading material in Braille or hostile public attitudes to people with non-visible disabilities.13 Assumptions about how people perform everyday tasks, or about what people can and cannot do without assistance, are built into human environThe ADA and the Meaning of Disability 165 ments in ways that can create barriers for those who do not conform to such expectations. If architecture and technology are based on limited images...