Followup: Courts and the Civil Rights of the Disabled

Another six months of Monica, have mercy; I don't care if it harelips the Governor. - Molly Ivins, Time.com

Here is the article which followed the previous article, In Retrospect: The Supreme Court and The Disabled:

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities.

Stigma: Notes on the Management of Spoiled Identity - Erving Goffman

The previous article,  In Retrospect: The Supreme Court and The Disabled, was about judicially interpreting away the protections of the Americans with Disabilities Act of 1990. It should be noted that the ADA is not a civil rights act. It refers only to barriers to the employability of people who can be productive members of society if reasonable accommodations are made in the workplace. The ADA does not even address such workplace civil rights matters as defamation of character or harassment. It says nothing about co-workers who attempt to degrade and intimidate employees who have, or are thought to have, a disability.

In this context, note a recent news item:

An Ohio man faces one month of jail time for teasing and taunting a 10-year-old girl with cerebral palsy after a video of the incident went viral.

On Nov. 27, Judge John A. Poulos of the Canton Municipal Court sentenced 43-year-old William Bailey to 29 days in jail. ...

William Bailey "was dragging his leg and patting his arm across his chest to pick his son Joseph up," said [Tricia] Knight. "I asked him to please stop doing this. 'My daughter can see you.' He then told his son to walk like the R-word." ...

The next day Knight posted the video on her Facebook page while [Knight's mother-in-law, Marie] Prince uploaded the video they called "Bus Stop Ignorance" to YouTube. Within days, the video went viral. ...

"I think when we look at cases, there's case law out there regarding people commenting and gesturing against race and religion. But when there's nothing out there regarding disabilities, it took me a little bit longer to come to a decision." ...

As for whether this case presents a new precedent in Ohio is another debate.

"I don't know if it sets a precedent so much maybe as it begins a conversation between people," said [Jennifer] Fitzsimmons [the chief assistant city prosecutor for this case]. "I think conversation starts progress, and I think if it can bring something else to light, it would be good."

Disabled people are a targeted minority. We call them retards, harelips, and spastics; and we abuse little people, those with Downs Syndrome, the developmentally disabled, bipolar people, and many others.

We have had a civil rights revolution, embodied in the Omnibus Civil Rights Act of 1964. But note what Prosecutor Fitzsimmons said about the treatment of a little girl with cerebral palsy just a day or two ago: There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. The Civil Rights Act has made such "commenting and gesturing" unacceptable when it applies to those we call minorities, that is, those of a different race or ethnicity.

However, we have a double standard concerning discrimination against the disabled. We treat them as having stigma. For example, note the following passage:

A drawn-out impeachment process is our worst option: another six months of Monica, have mercy; I don't care if it harelips the Governor.

This is from an article by the supposedly liberal columnist Molly Ivins, which appeared in the print edition of Time and has been on www.time.com for over a decade. It is obviously defamatory, and it seems to be clear evidence of a double standard. After all, would Time have printed it if the late Ms. Ivins had used the n-word rather than the h-word?

Above, we saw that William Bailey publicly humiliated a defenseless little girl, because she has cerebral palsy. He felt safe in doing so, with reason: This sort of thing happens all the time. After all, the nation's premiere news magazine defamed another group of disabled people, in print, and the nation has tacitly accepted this. It is as if, for the disabled, the civil rights revolution never happened.

How can this be? After all, justice–in this case, the freedom from marginalization and disenfranchisement–is, by definition, universal. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere."

Perhaps the reason is that our civil rights revolution apparently was not implemented, as King thought it would be, as justice–which is universal–but as protected class, which is obviously not universal. (King did not dream that his children would be in a protected class. He said I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.) We–even the infamous William Bailey–know that there are certain kinds of things you don't say about those we call "minorities." That sense–can we call it a sense of right and wrong?–obviously did not kick in where a little girl with cerebral palsy was concerned, and it did not kick in in the case of Molly Ivins' supposed earthy humor regarding a birth defect.

Protected Class and the Courts:
Would the court system of a liberal society, sidestepping universal justice, treat "protected class" as a term at law? One has only to read the news:

Publication: The Spokesman Review - Publish date: March 2, 1996
A state judge supports an earlier court ruling giving Spokane restaurants the right to refuse service to Hells Angels wearing their club insignia.
Spokane County Superior Court Judge Neal Rielly, in a written ruling released Friday, says members of the biker gang aren't a "protected class" under state or federal discrimination laws.

And more recently in Illinois:

Plaintiffs Gary Kohlman and Allen Roberts are members of the Hells Angels Motorcycle Club.*fn1 They contend that the Mayor of Midlothian (defendant Thomas Murawski), Midlothian's Police Chief (defendant Vince Schavone), and a Midlothian police officer (defendant Hal Kaufman) ordered restaurants and bars in Midlothian to refuse to serve the plaintiffs because of their membership in the Hells Angels Motorcycle Club and/or their wearing of Hells Angels insignia and logos. ...
Because no suspect class is at issue, the plaintiffs must allege that:
(1) they are members of a protected class; (2) who are otherwise similarly situated to members of an unprotected class; (3) who were treated differently from members of the unprotected class; (4) based on the defendants' discriminatory intent. 

In Plessy v. Ferguson, the first Justice Harlan wrote:

Our Constitution is color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Yet we have among us people we see every day, who are members of a targeted minority, but are not, as Prosecutor Fitzsimmons' comment reveals, in a protected class (there do not seem to be civil rights cases regarding them). That should not make a difference in how we treat the disabled. But it does: The most horrifying aspect of Molly Ivins' offhand remark is that everybody understands it. If it was possible to "harelip" the governor, it is understood that person would be outside the protections* and considerations we afford those of "normal" identity.

(*) Addendum 11/20/13 - Ta-Nehisi Coates recently observed:

“Faggot,” like most slurs, is a word used to remove a group from the protections of society.

 (As in the slur deployed by the late Molly Ivins in the quote from Time.com at the beginning of this post.)

In Retrospect: The Supreme Court and The Disabled

Another six months of Monica, have mercy; I don't care if it harelips the Governor. - Molly Ivins, Time.com

The last post, In The News: Disability Discrimination, noted:

On another weblog, In Retrospect: The Supreme Court and The Disabled documented a case in which the august Supreme Court slighted the disabled by interpreting away much of what little legal protection the Americans with Disabilities Act of 1990 provides. Here is a repost of that article:

In 2008, the year of Obama's first presidential election, the American Congress took action to remind the Supreme Court of the intent of existing disability employment law. Under the headline, Congress Passes Bill With Protections for Disabled, the New York Times wrote:

The bill expands the definition of disability and makes it easier for workers to prove discrimination. It explicitly rejects the strict standards used by the Supreme Court to determine who is disabled.

The bill declares that the court went wrong by “eliminating protection for many individuals whom Congress intended to protect” under the 1990 law.

“The Supreme Court misconstrued our intent,” said Representative Steny H. Hoyer of Maryland, the House Democratic leader. “Our intent was to be inclusive.”

In an effort to clarify the intent of Congress, the bill says, “The definition of disability in this act shall be construed in favor of broad coverage.”

Representative F. James Sensenbrenner Jr. of Wisconsin, the principal Republican sponsor in the House, said, “Courts have focused too heavily on whether individuals are covered by the law, rather than on whether discrimination occurred.” ...

“This is one of the most important pieces of civil rights legislation of our time,” said Representative Jim Langevin, Democrat of Rhode Island, who uses a wheelchair.
Lawrence Z. Lorber, a labor law specialist who represents employers, said the bill would change the outcome of “a slew of cases that were thrown out of court in the past.” Now, he said, “employees who have cancer or diabetes or learning disabilities will get their day in court and are more likely to get accommodations from employers.”

Lawmakers said that people with epilepsy, diabetes, cancer, multiple sclerosis and other ailments had been improperly denied protection because their conditions could be controlled by medications or other measures. In a Texas case, for example, a federal judge said a worker with epilepsy was not disabled because he was taking medications that reduced his seizures.
In deciding whether a person is disabled, the bill says, courts should not consider the effects of “mitigating measures” like prescription drugs, hearing aids and artificial limbs. Moreover, it says, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Senator Tom Harkin, Democrat of Iowa, the chief sponsor of the bill, said: “The Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation. The more successful a person is at coping with a disability, the more likely it is the court will find that they are no longer disabled and therefore no longer covered under the A.D.A.”

Senator Orrin G. Hatch, Republican of Utah, said the bill, by establishing more generous coverage and protection, “will make a real difference in the lives of real people.”

The Washington Post wrote:

Rights for the Disabled: IT WENT largely unnoticed in a week of economic upheaval, but Congress approved one of the more momentous pieces of civil rights legislation in recent years. The bill, passed overwhelmingly in the House and by unanimous consent in the Senate, will significantly broaden protections for the disabled. It instructs the Supreme Court to act "in favor of broad coverage," a distinction that should make it easier for disabled workers to claim discrimination. By explicitly arguing for a less constrictive interpretation, lawmakers sought to restore the intent of the original Americans With Disabilities Act of 1990; the Supreme Court has imposed a consistently narrow interpretation of the ADA. President Bush has said that he will sign the bill into law despite previous concerns that the legislation would spur excess litigation.

The legislation is the result of two years of remarkable cooperation between business groups and disability rights organizations. The compromise strikes a balance as it guarantees rights for workers with "actual or perceived impairments." For example, airlines can no longer discriminate against prospective pilots if the applicants employ "mitigating measures," such as corrective eyewear. ... [The bill protects intermittently disabled workers who can] prove they have a disability that "would substantially limit a major life activity when active." The bill will also provide protection, for the first time, to workers with serious ailments such as diabetes, epilepsy and cancer.

Business and disability groups are pleased with the final version of the bill and said that collaborating on the legislation should reduce the number of lawsuits over its implementation. The direct language of the bill, and the laudable cooperation that forged it, should also improve employment levels for the disabled. Two out of three people with significant disabilities are unemployed, a disturbing statistic that disability organizations say is unchanged from when the original ADA became law. This time, Congress's intent is clear, and we hope the courts follow it.

These two articles described case after case where the august Court cruelly denied protection to disabled individuals even though the intent of the Americans With Disabilities Act should have been clear. As the Times noted, The court went wrong by “eliminating protection for many individuals whom Congress intended to protect” under the 1990 law. As Senator Tom Harkin said: “The Supreme Court decisions have led to a supreme absurdity.” The question these articles brings to mind is, Why the needless cruelty of these excessively narrow interpretations? One would almost conclude that the only thing supreme about this Court is its supreme indifference to what matters in the lives of real people.