Braille Monitor                                             May 2015

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Improving and Augmenting the ADA, Rehabilitation Act, and IDEA—A Vision for the Next Twenty-Five Years: Disability and the Law of the Poor

by Marc Maurer

Marc MaurerFrom the Editor: This address was presented to the 2015 Jacobus tenBroek Law Symposium, held at the Jernigan Institute March 26 and 27, 2015. It is interesting that Former President Maurer is often asked to predict the future and to provide his thoughtful perspective about how we will make it better. Here is what he said:

In contemplating the shape of disability law twenty-five years in the future, two forces are primary. One of these is the attitude within society regarding the importance of people who possess disabilities. This attitude will inevitably be reflected within the statutes adopted by legislative bodies. The second is the attitude of those who have disabilities with respect to society and the decision-making which arises from this attitude. If this decision-making is sufficiently bold, the attitude of society will change, and the laws will be modified accordingly. People who have disabilities must be prepared to assume positions of leadership in shaping the law of the future. In other words, contemplation of the nature of the law in the future is more a matter for decision than prediction.

A principle of American law is that it applies equally to all people all of the time. The famous statement of John Adams is that ours is “a government of laws, not of men.”1 However, one of the characteristics of law is that it classifies and categorizes the people to whom it applies. If we know the classification to which you belong, we know what rights you have and how you may be treated. One of the classifications is poverty. Beginning in the 1500s, during the reign of Henry VIII, the British government (which gave the United States its form of jurisprudence) adopted laws directed toward the relief of the poor.2

In 1601, during the reign of Elizabeth I, Parliament adopted the Act for the Relief of the Poor, a compilation of many of the statements regarding the poor adopted earlier and a provision to institute a tax for the poor.3 The ostensible purpose of the act, as its title suggests, was to provide relief for the poor, but the mechanism of the law was to establish institutions in which those who might otherwise have been beggars on the streets, or vagrants, could be required to work—often at menial trades. Some writers have declared that the jail and the workhouse were the same place.4 Under Elizabethan law those who would not work could be punished for not doing so.5

In 1966 Dr. Jacobus tenBroek wrote, “Not all who are poor are physically handicapped; not all who are handicapped are poor.”6 However, the coincidence of poverty and unemployment of the blind is enormous. To illustrate this coincidence, Dr. tenBroek stated that under 10 percent of blind Americans receiving Aid to the Blind were employed.7 Furthermore, Dr. tenBroek also asserted that there are two forms of law: one for the wealthy and one for the poor.8 The law that applies to people with disabilities is shaped in part by the categorization arising from the law of the poor.

The Rehabilitation Act, the Individuals with Disabilities Education Act, and the Americans with Disabilities Act are not based upon identical legal theories, but they have characteristics in common. Consider, for example, the Rehabilitation Act.9 The Poor Law adopted during the time of Queen Elizabeth I established the principle that poor relief would be based upon individual needs, individually determined by a parish official. Relief could be granted only if an official believed the persons receiving it deserved to get it. The statute did not offer an entitlement to the poor. The Rehabilitation Act takes the same approach. Each client is offered the opportunity to create an Individualized Plan for Employment,10 but the practice in most jurisdictions is to limit this plan by arguments that demand of each client that money be saved on every aspect of rehabilitation.11 Only the least expensive access technology can be provided; only the junior college can be made available because the expense will be less than that associated with a four-year institution; freedom of choice offers the opportunity to receive orientation and adjustment training at any center of the client’s choosing, but the least expensive state-run training program must be used to save funds. The test is not what will work best for the client, but what will be cheapest for the administration. The Rehabilitation Act authorizes the provision of many services but guarantees none of them. Clients do not have the right to training. Rather, they have the right to complain if the training program is inadequate. Requiring this process of the clients ensures not a successful rehabilitation outcome but a continuance of the client in poverty.

The Individuals with Disabilities Education Act has a similar philosophy.12 Each student is guaranteed an Individualized Education Plan, which offers the student a Free Appropriate Public Education. Although the language of the act suggests that this plan is to be tailored to the individual needs of the student, convenience for the administration is more often the standard employed than success for the student. Decisions interpreting the act declare that specific services are not guaranteed. Students get “appropriate” “educational benefits.” No standard of excellence is required. The law does not guarantee service. Rather, it guarantees the right to complain if the services wanted are not available.13

The Americans with Disabilities Act14 does guarantee something—at least in theory. Although it does not prohibit paying disabled workers less than the federal minimum wage, this act says that discrimination based on disability is prohibited, and it offers a method for challenging discrimination. However, the Supreme Court has declared that the protections of this act do not extend to compensation in the form of money damages paid by states.15 People who possess disabilities are not classified among those who may expect payment from state governments when discrimination occurs. Furthermore, the special classification of the disabled includes a heavy emphasis on safety. A person possessing a disability may be refused employment if there is a perception that the environment of the job will be a threat to that person’s safety.16 Disabled people do not have the same rights of participation that others possess.

I think the law must adopt the fundamental principle that, when you pay for something, you are entitled to get it. This principle should apply whether the individual pays directly or has somebody else make the payment. I think the law should abandon the practice of adopting rights for disabled people without creating a corresponding set of remedies. When I was in law school, I learned of the concept of rights without remedies, and I was shocked. What value is a right that cannot be enforced? I wondered. We are paying for rehabilitation; it seems to me that we have a right to get it. We are paying for education; I think we have the right to get that also. The educational experiences offered to disabled people in the United States are severely restricted. This is a form of discrimination. The Americans with Disabilities Act should apply, and the remedies should offer enough revenue to pay for an equal education. These remedies should apply not just to private entities but also to programs within government.

The law of the rich stands for the proposition that those who do not provide the goods and services for which payment has been made face substantial damages or go to jail. The law should be at least as useful to the poor as it is to the rich. We know that those who misrepresent in the securities industry, in banking, and in selling property must pay reparation for the damage they do. We need a change in classification for disabled people so that the law of the rich applies. Those with disabilities have talent, and we should have as much right to use it as anybody else. These are the objectives we must seek to have incorporated in the law within the next twenty-five years.

Footnotes

  1. John Adams, The Works of John Adams, Second President of the United States, (Charles Francis Adams ed., Little, Brown & Co., 1856) 106, http://oll.libertyfund.org/titles/2102.
  2. Paul Slack, The English Poor Law, (Cambridge University Press, 1995) 1531-1782.
  3. The Poor Relief Act, 1601, 43 Eliz., c. 2 (Eng.).
  4. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status, 16 Stan. L. Rev. 257, 316 (1964).
  5. Jacobus tenBroek & Floyd W. Matson, Hope Deferred: Public Welfare and the Blind (University of California Press, 1959), 40.
  6. Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 Calif. L. Rev. 809, (1966).
  7. Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 Calif. L. Rev. 809, 810 (1966). (“[I]t remains a fact that only a very small fraction—perhaps five or six per cent at most—of those with serious physical handicaps are gainfully employed in ordinary open occupations, with an additional two or three per cent at work in specially subsidized sheltered employment.”); U.S. Census Bureau, American FactFinder, 2013 American Community Survey Table B18130, http://factfinder.census.gov/ (last visited March 11, 2015) (The Census Bureau’s 2013 American Community Survey contains a table which expresses a statistic that may indicate substantial progress from the time that Dr. tenBroek was writing. This document indicates that 28.7 percent of persons with disabilities aged 18 through 64 are below the federally-established poverty level.)
  8. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status, 16 Stan. L. Rev. 257, 258 (1964).
  9. Rehabilitation Act of 1973, 29 U.S.C. §§ 701-793.
  10. 29 U.S.C. § 722.
  11. See, e.g., Wasser v. New York State Office of Vocational & Educ. Servs. for Individuals with Disabilities, 373 F. App’x 120, 121 (2d Cir. 2010); Yochim v. Gargano, 882 F. Supp. 2d 1068, 1073 (S.D. Ind. 2012); Truss v. State, Dep’t of Human Servs., No. M199901317COAR3CV, 1999 WL 1072583, at 2-5 (Tenn. Ct. App. Nov. 30, 1999).
  12. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485.
  13. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 187-209 102 S. Ct. 3034, 3041-3052 (1982).
  14. Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213.
  15. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360, 121 S. Ct. 955, 960 (2001).
  16. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 76-87, 122 S. Ct. 2045, 2047-2054 (2002).

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