Hey all.. So I have a question more than a reflective post this week. This question formed from another project I'm working on (equal protection in k-12 public schools), but it definitely applies to what we've been discussing the past few weeks.
Instead of asking, was the ADA passed too early... I want to ask, should it have been passed at all? This stems from the same question I have regarding the EAHCA(EHA)/IDEA(IDEIA). Instead of creating acts that are supposed to assist with the equal treatment of those with disabilities, why isn't there simply a statement that the 14th Amendment of the Constitution (allowing for equal protection of the laws) also applies to those with disabilities??
This stems from some pretty heavy research I'm doing around Brown v. Board and its progeny. We have this substantial and incredibly influential court case that applies the 14th Amendment to k-12 schools regarding black students. We had the PARC & Mills (Mills more than PARC, really) cases to the same effect for students with disabilities, but they only went to the district and circuit courts, not the Supreme Court. Instead of saying that the 14th Amendment applies to these students the way that Brown did, we created acts whose intentions are to create rights that produce equality for these students. Why do we need an act to do this at all? We have the 14th Amendment.
And the same goes for the ADA... why do we need an "Americans with Disabilities Act" that "prohibits discrimination against
people with disabilities in employment, transportation, public accommodation,
communications, and governmental activities" (US Dept of Labor)?? Doesn't the 14th Amendment already do this:
"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the
state wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
Maybe we settled for these acts instead of pushing for the Government to recognize that all persons born or naturalized in the United States includes persons with disabilities, as well as blacks, Latinos, or women. (Yes, I know that this has not been realized yet.. but generally speaking a Constitutional violation gets much more attention than a regulation violation...). Instead of making a Constitutional argument, persons with disabilities are generally forced to exhaust all options with the IDEA, Rehab Act, or ADA before a claim can even be brought against an entity for these violations. Why? Why? ( I actually know the legal reasons why, but I don't believe those reasons are justified.)