Sunday, March 8, 2015

Separate but equal?

In class last week we spent some time talking about the disability rights movement and whether the ADA supports the movement. We all obviously agree that the ADA was an important step, although there is a huge question mark on the timing of its passage.

My thoughts for this blog center around why the ADA is generally not looked at as a civil rights movement document, much as the Civil Rights Act of 1964 is.

So the ADA is all about insuring rights for a group of people. In this way, it is very similar to the CRA of 1964. It's a document that empowers people and gives them a legal statute and method to stand up for their rights and assert them throughout society. This document should allow for the growth of a movement within the disability community to achieve equal rights, just as other groups continue to fight for their equal rights.

However, those in the disability community, 25 years later, are still fighting for their rights in general. They are still working to establish their rights as people instead of working past that and trying to equalize themselves to those that are privileged in our society (generally the able-bodied white male). On top of this, the movement that was present in the 80s and into the 90s has fractured unbelievably  since the ADA's passage. Why is this so? Why are we at this place in society when 25 years after the CRA of 1964 (think about how things were in 1990) things may have been unequal as ever, but the rights of blacks had definitely been established by then.

My theory: the ADA has actually helped to fracture the movement. Yes, the ADA was, and continues to be, a monumental document for those with disabilities. However, the ADA, unlike the CRA, takes a certain amount of pride in the individualization of its implementation. When applying the CRA, one does not look to "how black" someone's skin is to appropriately provide support or rights to the individual. The CRA officially recognized the "plight of the African Americans" as a class. There is no separation between people with tan skin versus people with dark skin, no differentiation about what rights someone has if their relatives were brought over on a slave ship 200 years ago or if their parents moved to America from Jamaica last year, no difference in the establishment of rights depending on whether you were raised in NYC, Chicago, Mexico, or Africa. There is still a difference in implementation (racism definitely still exists), but there is no differentiation in the establishment of rights in the CRA. Those discriminated against were untied as a class within the document.

On the opposite end of the spectrum, the ADA identifies different types of disabilities.. it sets out regulations for different types of disabilities.. it favors rights for the physically disabled over rights for the mentally (or otherwise invisibly) disabled.. it has specific regulations for specific types of accommodations.. it allows for escape hatches for certain entities and their treatment of certain disabilities.. it allows for discretion when implementing (probably establishing too) rights for individuals with disabilities.. and, in my mind, the most debilitating part of it is that it allows for the treatment of each case brought before the courts to be assessed on an individual, case-by-case basis.

Now, damages and fines for different grievances should always be scaled to the infraction. A company that does not hire one person because they are black should have different repercussions than the company that habitually will not serve black patrons, offers different work environments, or supports physical attacks on black persons. Absolutely. But, there is not a question of whether recourse is available to those persons that are offended by the actions of the company. That is the very basic difference. A person in a wheelchair, or that is deaf, or blind, or has a low IQ very rarely has a case if they are not hired - even if they can prove it is because of their disability - if the company can use a loophole. If a company regularly does not serve people in wheelchairs (steps by the door), it will be treated differently than if they do not serve a blind person (no braille menu available), or a deaf person (no interpreters available at a hospital). There are specific regulations for all these things (or a lack thereof, specifically for those with mental disabilities) and thus there is no cohesive and implementable statement from the ADA that all will be treated equally, or even all have the same basic rights, because the ADA - although establishing rights legally - does so separately. Separate but equal? Wasn't that the premise being overturned in the CRA? Yet we praise the ADA for establishing separate (but equal?) rights for those with disabilities.

It's like the CRA made sure that everyone used the same drinking fountain, but the ADA established that drinking fountains should be created based on individual circumstances of ability. There is no premise of equality here, there is celebration of the individual rights instead of the rights of a class.

Okay, I've put this out there... now to say that I really really struggle with these thoughts because I see the ADA as a huge step forward for the rights of individuals with disabilities... but when I look at it through this lens, I see a legal document that purposefully and intentionally disables the class of people affected by it by denying their establishment as a class and setting up actions based on individuality rather than rights for all - which precludes it from being a civil rights issue and (permanently?) places these issues into the individual realm with no real traction. The only civil rights action that can be asserted in this way, I believe, would be a class action suit.. but with the differentiation of disabilities within the ADA and its regulations, can there ever really be a class action suit that isn't delegated to one "type" of disability? (ie: blind persons (people that have a family history in slavery), deaf persons (people that are 'first generation' Americans from a predominantly dark skinned country), persons with invisible disabilities (those living in ghettos).)


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