The Law of Disability, Special Treatment, Dr. Jacobus tenBroek, and the Constitution
by Marc Maurer
From the Editor: Former President Maurer needs little introduction to readers of the Braille Monitor. His long and distinguished service as the President of the National Federation of the Blind means that anyone in the blindness field knows his name, but what may be less well-known about him is that he is a lawyer whose thoughts often turn to the rights of blind people as granted in the United States Constitution and interpreted by the courts of our land. It is not surprising that from time to time he takes issue with the way a court has interpreted our place in society, and when he takes issue with a thing, often people come to know about it. Through his writings and speeches, Former President Maurer reveals hypocrisy for what it is, lays bare the fallacies he finds in legal assumptions about our inferiority, and makes clear the imperative of changing these laws which separate us from first-class citizenship. Here is what he said to the 2016 convention:
Are you the right kind? Do you possess the characteristics that make you a part of the society in which you live? Can you expect the same rights, privileges, protections, liberties, dignity, and legal guarantees that others in this society may expect? As I once overheard one of my children ask a child from a neighboring family, “Are you allowed?”
One important function of the government is to create categories of human beings. The category to which you are assigned determines the rights you have. One of the categories created by the government is currently named “disability.”
What is disability? The Americans with Disabilities Act contains a definition which says in part “the term disability means with respect to an individual . . . a physical or mental impairment that substantially limits one or more of the major life activities.” One of the major life activities is seeing, which indicates that the blind are part of the definition. Does this mean that you have rights? If you do, how extensive are they, how closely do they resemble the rights that others may take for granted, and how broad is the category that specifies what you get? What is the source of these rights?
The design in the United States is that laws adopted in our country protect people. The most important of these laws is the United States Constitution. Congress may adopt any law that it thinks is necessary for the country if the Constitution authorizes Congress to exercise this power. State legislatures may adopt any law they please unless the law violates the state or the federal constitutions or a federal statute Congress adopted under the authority of the federal constitution.
Dr. Jacobus tenBroek, the founder and first President of the National Federation of the Blind, was a constitutional scholar. In 1956 in a speech delivered to the National Federation of the Blind banquet, he made the following observation:
The Constitution of the United States declares that all persons born in the United States or naturalized are citizens. There is nothing in the Constitution or in the gloss upon it which says that this section shall not apply to persons who are blind. If born in the United States or naturalized, whether before or after blindness, blind persons are citizens of the United States now and are now, not merely in some future generation, possessed of the right to be citizens and share the privileges, immunities, and responsibilities of that status. Moreover, the bounty of the Constitution extends to all persons, whether citizens or not, rights to freedom, equality, and individuality.
As citizens, then, or as persons, who happen to be deprived of one of their physical senses, we claim, under the broad protection of the Constitution, the right to life, personal freedom, personal security; the right to marry, have and rear children, and to maintain a home; and the right, so far as government can assure it, to that fair opportunity to earn a livelihood which will make these other rights possible and significant. We have the right freely to choose our fields of endeavor, unhindered by arbitrary, artificial or man-made impediments. All limitations on our opportunity, all restrictions on us based on irrelevant considerations of physical disability, are in conflict with our Constitutional right of equality and must be removed. Our access to the mainstreams of community life, the aspirations and achievements of each of us, are to be limited only by the skills, energy, talents, and abilities we individually bring to the opportunities equally open to all Americans.
Finally, we claim as our birthright, as our Constitutional guarantee and as an indivestible aspect of our nature the fundamental human right of self-expression, the right to speak for ourselves individually and collectively. Inseparably connected with this right is the right of common association. The principle of self-organization means self-guidance and self-control.
These words spoken by Dr. tenBroek sixty years ago are for me a ringing declaration of the independence of the blind. They mean that we have a right to expect from our government the full protection of the law. Congress must respect our abilities; agencies of the government must treat us with equality; and the courts must accord us the dignity granted to all others. Does this happen? Are we categorized with the honor that is due to all citizens?
Dr. tenBroek, in addition to being a constitutional scholar, was a teacher. He asked his students to read a number of decisions adopted by the Supreme Court of the United States. One of these, Buck v. Bell, which was adopted in 1927, declares that people with certain disabilities do not have the same kind of legal protection available to all others. A woman aged eighteen, Carrie Buck, was determined by an agency of government in Virginia to be mentally disabled, in the words of the Supreme Court, feebleminded. She was placed in the “State Colony for Epileptics and Feebleminded.” Prior to her placement in the institution, Carrie Buck had been raped, and she had given birth to a daughter. Prior to these events, officials at the institution had declared that Carrie Buck’s mother was feebleminded. Subsequent to Carrie Buck’s institutionalization these same officials declared her daughter to be feebleminded, although at the time of the determination her daughter was but seven months old. According to one account the baby’s feeblemindedness was determined by looking at her. Because these officials worried that Carrie Buck might have other children who they thought might be feebleminded, they decided to perform a sterilization operation on her without her consent. A statute authorizing this procedure had been enacted in Virginia in 1924, less than a year before the decision to perform the operation. The government officials who ran the institution for the feebleminded wanted to test the constitutionality of the law, and they decided to use Carrie Buck for their experiment.
In 1859 Charles Darwin had written his book on the origin of the species, which asserted that the evolutionary process has been a part of the development of plants and animals and probably human beings. Heredity came to be known in the latter part of the 1800s, and it was widely accepted in the early part of the 1900s. One line of argument which came from this is the eugenics movement, which asked that hereditary characteristics of human beings be taken into account to improve the race. This concept was carried to its extreme in the Nazi regime of Adolf Hitler. However, the concept that some people are fit and others not, some people are the right sort for breeding while others not, that positive traits may be promoted and negative ones stamped out, became for a time a part of science and a concept reflected in law. Today some doctors are reasserting the concept with the idea that examination of a fetus for potential disabilities before it is born can be used to decide whether it shall live or die.
However, the Constitution guarantees to persons in the United States rights of life, liberty, and property that they may exercise freely. In the case of Carrie Buck, who brought her suit to challenge the Virginia law, these rights were denied. Rights of life, liberty, and property appear to mean that she has a right to her own body—it belongs to her. She may reasonably expect to have the right to establish a home and a family. However the brief opinion of the Supreme Court (only five paragraphs) held that her constitutional rights were not violated by the decision of the state to take from her the ability to bear children. Her disability—one which later examination casts in doubt—was sufficient, said the court, to authorize the state to penalize her severely. The only basis of the decision is that according to the court she possessed a disability.
The opinion declares that Virginia “is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety.” The court found that the plaintiff “is the probable potential parent of socially inadequate offspring” and that the purpose of the statute is “to prevent our being swamped with incompetence. It is better for all the world, [said the court] if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.” In the last sentence of the text, the court refers to the inmates as people “who otherwise must be kept confined.” Is this confinement protective custody or penal servitude? When the judge speaks of continuing their kind, does this indicate that the court believes there are two types of individuals—one known as persons who have constitutionally guaranteed rights of liberty and property and another known as individuals who somehow by the possession of disability alone have lost the status of personhood? The Buck v. Bell case would seem to make this assertion. It has never been explicitly reversed although the Supreme Court has twice considered similar cases, once in 1942 and once in 1978. The court has declared the right to establish one’s own family to be fundamental and consequently entitled to substantial protection under the Constitution. However, the statute authorizing involuntary sterilization continued in Virginia into the 1970s.
When I was wondering about this case, I could not imagine what circumstances came together to bring the facts before the Supreme Court within three years after the statute became law. A person who is placed in an institution alleged to possess mental disability does not ordinarily have financial resources or political connections that would make the appeals process readily available. How could this have happened? A review of the record shows that the lawyer representing Carrie Buck, the plaintiff in this case, had been one of the directors of the institution where she had been confined. The record shows that he never called Carrie Buck to testify on her own behalf, and he never called any other witnesses to testify for her. Another interesting fact is that the superintendent of the institution where she was confined paid the lawyer’s bill. This young woman never had independent counsel, and she never got her day in court. She was betrayed, and the system of American justice did nothing to prevent it. Certain disabled individuals in the United States have been classified in a category which says that they do not have constitutional rights ever since that egregious decision was made.
In 1938 Congress adopted the Fair Labor Standards Act, which offered American workers a right to receive a federally-established minimum wage. However, the handicapped did not enjoy the same benefits. They were classified in 1938 as not worthy of the same protections available to the able-bodied, a classification which persists today. However, in 1986 a provision was written into the law granting disabled workers a mechanism to challenge the subminimum wage. Because the payments to be received from such a challenge are severely restricted, this form of challenge has almost never been used. However, in 2016 three workers from a sheltered workshop in Ohio, Joe Magers, Pam Steward, and Mark Felton, brought such a challenge with the support of the National Federation of the Blind and others.
The administrative law judge who heard the case decided in favor of the workers, saying that their disabilities had not prevented them from performing the tasks they had been assigned in the workshop. The judge said that the classification which had been imposed on these workers of incompetence was not justified. Although the decision does not state the matter with the simplicity that it might, the judge appears to have come to the conclusion that the workers in this case do not appear to be substantially different from other workers in similar jobs. Because these workers appear to be regular workers doing regular work, they get the regular protections that all other workers get. If the workers are to be treated as an inferior class with inferior protections, the law requires the employer to demonstrate this inferiority and to show that disability is the reason for it. Because the employer did not make this demonstration, the so-called special minimum wage (read “subminimum” for that word “special”) does not apply.
The Buck v. Bell decision was made by the Supreme Court. The Ohio minimum wage case was decided by an administrative law judge. The first classifies persons with disabilities as incompetent. The second classifies workers who incidentally have disabilities as regular productive people. The contrast is striking.
What the judges think disability means makes all the difference. The tyranny of low expectations diminishes productive capacity. Those who are told that they do not have ability modify their behavior accordingly. When disabled workers are classified as incompetent, training programs to teach competence become unavailable. Both the training in the skills to do the work and the attitude of managers and employees come together to assure that nonproductive behavior is the norm. But the exact opposite is also true. Those who are challenged to produce superior work very often do exactly that. The expectations determine the outcome.
An article that appeared on the Forbes website on May 19, 2016, tells us that disabled people receiving subminimum wages cannot possibly deserve better because they are incompetent—incapable of earning the $7.25 an hour currently guaranteed by the Fair Labor Standards Act. The author of the article, Tim Worstall, a fellow at the Adam Smith Institute in London, declares that disabled employees receiving subminimum wages have their jobs as a matter of charity. The incompetent disabled workers get to remain at their work because of the benevolent generosity of the bosses that hired them. Of course, the bosses do not receive subminimum wages, not even close. Some years ago the head of Goodwill Industries International, which pays many of its disabled workers less than the minimum wage, was being paid more than half a million dollars a year, and some Goodwill executives were getting more than a million dollars a year.
The subminimum wage jobs being performed by disabled workers do offer benefits, says Worstall, something to keep the disabled busy during the day, a feeling of self-worth, and a little pocket money. What would the disabled do all day without this charity? Among the many bombastic pronouncements of Mr. Worstall is the assertion that the National Federation of the Blind is “remarkably silly” for promoting minimum wage protection for disabled people. However, as we have said for more than half a century, we will speak for ourselves, and we will not permit any self-important uninformed bigot to represent our interests. He tells us that nature has been unkind to us—we have disabilities after all. It would be even more unkind to give us the protection of the law. Protect us from the so-called kindness of strangers.
What does all of this mean for us, for the members of the National Federation of the Blind? How do we respond to the prejudice expressed by the Supreme Court or by major news outlets? At the outset we must assess the damage inflicted by these institutions. The story that appeared on the Forbes website got there because we are making significant headway in bringing the exploitation of the subminimum wage law to the attention of the public. Bernie Sanders and Hillary Clinton, the principal democratic candidates for president in 2016, have both indicated that the subminimum wage authorization must be eliminated. When in the past have two declared candidates for president taken such a strong position to protect the rights of the disabled?
On the other hand, the Supreme Court has the power to insist upon a classification of disabled people that denies us the same rights that other people are granted routinely, but it also has the power to recognize our value and our fundamental rights. Almost nobody has ever heard of the Buck v. Bell case, and the Supreme Court itself rarely remembers the decision. Although not as well-known as constitutional rights, disability rights have earned a place in the lexicon of the legal profession. Many law schools teach the principles and disciplines involved. Seminars on the topic occur, and we ourselves conduct one of the most well-known. Beyond all of this, disabled people have heard of disability rights, and we are more active than we have ever been.
Judges who sit on the Supreme Court are an elite group. They have not generally faced the challenge that disability demands, and they have not found the strength to make this challenge an asset. However, we have done both, and we must teach them what they need to know to recognize that all of us have the right to participate in the promises of equality and freedom that make our nation what it is.
What we say to the Supreme Court is this. No more Buck v. Bell. No more will we be known as a menace to society. No longer will we be known as socially inadequate. No longer will we tolerate the accusation that we sap the strength of the state or that our presence will cause it to be swamped with incompetence. We will not tolerate the accusation that we are degenerates, more likely to commit crime than others, or “manifestly unfit” for a place in the society of which we are a part. Those who can say without doubt or hesitation that three generations of imbeciles are enough may justly be subjected to scrutiny regarding their own knowledge or moral rectitude. The problem with the decision in Buck v. Bell is that those who made it possessed a colossal ego and an equally colossal ignorance. They did not know what they were talking about. Furthermore, they were careless about the nature of the law they were expected to enforce. The strength of our nation, the strength of our system of government comes in substantial part from the guarantee that such classification cannot be made.
To ensure that such classifications do not happen again, we have set about a plan to assist disabled individuals in becoming part of the elite. We have decided to help them become judges. We have decided to help them find their way to participation in the decision-making process. We will not be shut out of the protection of the law. Instead, we will become a part of it. As this program comes to fruition, we will be an important element of creating the legal structure that defines our rights. This is the determination of the National Federation of the Blind.
Are we allowed? What an impertinent question! Who on earth could have the immortal gall to suggest that such a question is proper? Decisions about our lives must not be made by others; they belong to us! With time and work we will bring about the understanding we need. The government and the public will support us, but we must make the choices and take the risks. In the long run the government reports, the history books, and the legal treatises will reflect the reality of what we are, and our freedom will be won!Media Share
