What Happens When the Supreme Court of the U.S. Gets It Wrong?

Angela Van Etten: “When Congress enacted the Americans with Disabilities Act (ADA) in 1990 they adopted the same definition of disability used in the Rehabilitation Act of 1973. They expected that courts would follow Rehabilitation Act caselaw when deciding who is disabled. Shockingly this did not happen. Instead courts narrowly interpreted the disability definition leaving many ADA claimants without justice.

As a result, discrimination against people with attention deficit hyperactivity disorder, bipolar disorder, blood cancer, major depression, diabetes, epilepsy, learning disabilities, multiple sclerosis, and sleep apnea went unchecked.

A diabetic could be denied coverage due to the mitigating measure of taking insulin leading to the absurd result that an employer could refuse an accommodation request to take a break to administer insulin because the employee was not disabled!”

The Court has failed to give disability due consideration before. In 2013 this blog’s post In Retrospect: The Supreme Court and the Disabled noted, “ These … 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. Senator Tom Harkin: “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?”

Reference: ADA Amendments Act of 2008 (ADAAA)

We were left out of the Civil Rights revolution. Tell people that.

Huffington Post: ““It’s natural to wish for life ‘to just get back to normal’ as a pandemic and economic crisis upend everything around us,” Obama said. “But we have to remember that for millions of Americans being treated differently on account of race is tragically, painfully, maddeningly ‘normal’ — whether it’s while dealing with the health care system, or interacting with the criminal justice system, or jogging down the street, or just watching birds in a park.””

Also, “for millions of Americans being treated differently on account of disability is tragically, painfully, maddeningly ‘normal’.”

If I were to meet former President Obama, whom I whole-heartedly support, I would suggest that people having disabilities should also be part of the narrative.

I recently posted the following comment to a much-lauded anodyne article on a disability forum:

I see the [Forum] addressing access issues but not civil rights issues: The right of disabled people not to be demeaned, degraded and marginalized. The same people who wouldn’t think of commenting and gesturing about minorities, women and LGBTQ people often have no scruples about regarding disabled people as stigmatized and risible.
The narrative needs to be changed, something that bloggers with writing skills should be able to set about doing. A landmark civil rights case such as Brown v. Board of Education or Obergefell v. Hodges would help to raise consciousness.
We were left out of the Civil Rights revolution. Tell people that. Ask the ACLU if sometime it might think of making this an issue.
It is just as wrong to look cross-eyed at someone for being disabled as it is to give someone static for being a person of color.
So far as I know, the public does not know this. It’s time to change that.

Probably, “something that bloggers with writing skills should be able to set about doing” pissed them off.

Well, their trivializing, faux-activism pisses me off.

In the current narrative of “progressives,” people who look funny or move funny (the CPs, Cerebral Palsy, Cleft Palate) offend the Community, and under the rubric of Social Justice, the Community has the right to punish and expel those who offend it, unless they are part of progressivism’s favored classes.

But under Enlightenment liberalism, people who look funny or move funny are still part of The People, and as entitled to The Rights of Man as progressivism’s favored classes: minorities,(1) women, LGBTQ.

Justice Harlan’s Plessy dissent said that the U.S. Constitution "is color-blind, and neither knows nor tolerates classes among citizens."

The Fourteenth Amendment says everybody is entitled to “the equal protection of the laws.”

Even those the Community considers misfits.

Reciprocity Principle, from the first post on this blog:

A reciprocity principle: If a remark or an action or an attitude would be seen as discriminatory if directed toward a minority, it is discriminatory for us. We have exactly the same civil rights, even if the justice system does not act as if we do.

/*****/

(1) People having a disability are America’s largest minority, according to the Americans with Disabilities Act, the Department of Labor, and the Centers for Disease Control, among others:

https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html
“One in four people in United States has a disability, according to the Centers for Disease Control.”
http://www.adainfo.org/sites/default/files/Leadership-Network/Modules-1-5/5a-America-largMinorityFINAL.pdf
“America‘s largest minority”
http://www.dol.gov/odep/pubs/fact/diverse.htm
“As the nation's largest minority — comprising almost 50 million individuals”

An overwhelmed health care system’s triage may discriminate against people with disabilities

The Atlantic states that people with disabilities may face not only “overt discrimination” in hospitals, but “implicit bias” from a prejudice about their quality of life.

As the philosopher Nietzsche remarks below, in times of stress, an eliminationist attitude residing in some of the mainstream rises to the surface.

Elaine Godfrey:

Daniel Florio … was born with spinal muscular atrophy, a genetic disorder that makes him unable to walk or use his arms. His disability makes him more vulnerable to the virus than most people, and he’s afraid of what will happen if he ends up in the hospital with a serious case. Intubated people cannot speak, and Florio would not be able to use gestures or otherwise communicate with his doctors. Given infection-prevention rules, his caregivers would likely not be allowed to accompany him.

She adds:

But Florio is afraid of something else too: the possibility that, if he contracts the virus, he could be denied lifesaving treatment because of his disability. And like other Americans with disabilities, he worries that could happen not just because of overt discrimination in hospitals, but also because of implicit bias. “People overwhelmingly believe that being disabled implies a worse quality of life than it does,” Florio said. If doctors act on those beliefs—wittingly or not—“what that means in practical terms is that people like us will die.”

In some states’ policies it appears that people with disabilities do not have an equal right to life in comparison with the mainstream:

Washington’s guidelines include considerations about a patient’s “baseline functional status,” which involves factors such as physical ability and cognition. … The Washington health department told me it’s updating its guidelines to make sure “its original intent of nondiscrimination” is “unequivocally clear.”

This bears uneasy resemblance to the presuppositions of eugenics advocates, and of proponents of the Will to Power who said that “in a certain state it is indecent to go on living.” The Antichrist declares, “The weak and ill-constituted shall perish: first principle of our philanthropy. And one shall help them to do so.”

Disability forms may not state correctly what qualifies as disability

I have been asked to fill out a “Disability Status Certification” by the 55+ apartment complex where I live. It says “‘Disability’ is defined as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, such as not being able to care for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, or learning.”

I added, “or a person who is perceived by others as having such impairment.” HUD.gov*

At the bottom of the one-page form I wrote:
(*) “This document stresses access disability. FHA.gov links to HUD.gov, which includes negative perception — stigma/social bias, which is the operative factor in my case.”

Last September, in Your landlord may not realize that the Fair Housing Act applies to such disabilities as cleft palate, the post notes that the person interviewing candidates for the housing complex appeared not to be aware that supervising Federal agencies such as FHA, HUD, ADA, and DOL regard physical conditions which affect appearance as qualifying disabilities.

A casebook on disability: Facial disfiguration

The first selection notes that in discussions of those whose civil rights are commonly violated, disabled people or often left out.
Jonathan Allen, on the deep divisions exposed by the fight over Rep. Ilhan Omar, in the form of “the list of groups targeted by hatred”: “Rep. Doug Collins, R-Ga., [noted] that Wiccans, Mormons and disabled people had been left out.” (Emphasis added)

Neil Steinberg, on the human discomfort occasioned by disfigured faces:

Disfigured faces can provoke a fear reaction, leading to bullying and other social tyranny:

Fear of people with facial disfigurements is a common phobia, yet, unlike other fears -- of height, of water, of the dark -- it is seldom discussed, perhaps because so much popular culture, from The Iliad to Saw V, pivots upon this fear. Perhaps it is assumed: of course you are afraid of the man without a face. Who wouldn't be?

Or perhaps because, unlike fear of high places, water or the dark, teratophobia -- fear of disfigured people or of giving birth to a disfigured baby, literally 'fear of monsters' -- has a living object: the injured, burnt, unusual-looking people themselves. Drawing attention to the flinching reaction they often receive, the stares and mockery that are a routine part of their daily lives, can seem an additional cruelty, the sort of vileness enjoyed by schoolyard bullies.

Identifying friend and foe has been a survival skill. A disfigured face, perhaps not seeming human at all, can trigger an instinctive fear:

Why are distorted faces so frightening? Freud classified certain objects as 'unheimlich,' a difficult-to-translate word akin to 'uncanny': strange, weird, unfamiliar. Waxwork dummies, dolls, mannequins can frighten us because we aren't immediately sure what we're looking at, whether it's human or not, and that causes anxiety. A surprisingly large part of the human brain is used to process faces. Identifying friend from foe at a distance was an essential survival skill on the savannah, and a damaged face is thought to somehow rattle this system. ...

The psychologist Irvin Rock demonstrated this in his landmark 1974 paper 'The perception of disoriented figures.' Rock showed that even photos of familiar faces -- famous people like Franklin D Roosevelt, for instance -- will look unsettling when flipped upside down. Just as, if you tip a square enough it stops being a square and starts becoming a diamond, so rotating a face makes it seem less like a face. The mind can't make immediate sense of the inverted features, and reacts with alarm. A bigger change, such as taking away the nose, transforms the face severely enough that it teeters on no longer seeming a human face at all, but something else.

The author himself, who thought he was prepared, experiences “horror”:

That isn't a theoretical example picked out of the air. On another visit to the Craniofacial Center, I enter Seelaus's examination room to be introduced to a patient. He turns in the chair, and is missing the middle part of his face. There are four magnetic posts where his nose will go, and below it, a void revealing smooth yellow plastic. My eyes lock on his eyes, I shake his hand and say some words.

A half-hour later, standing on the elevated train platform, I still feel ... what? 'Harrowed' is the word that eventually comes to mind. Why? There was no surprise. I'm no longer a child but an adult, a newspaper reporter who has spent hours watching autopsies, operations, dissections in gross pathology labs. I was expecting this; it's what I came here for. What about his face was so unsettling?

Maybe seeing injured faces compels an observer to confront the random cruelty of life in a raw form. Maybe it's like peeling back the skin and seeing the skull underneath. Like glimpsing death. Maybe it touches some nameless atavistic horror. ...

Randall H James was born in Ohio in 1956. His first surgeries were done over the next couple of years at Cincinnati Children's Hospital by Dr Jacob Longacre, a pioneer in modern plastic surgery.

The teachers assumed I must be stupid.

Randy James, doctor

Our instincts often betray us into making an “automatic connection between inner person and outer appearance”:  “A disfigured person is a retard”:

"He was like a second father to me because I saw him so much," says James, who didn't celebrate a Christmas at home between the ages of 3 and 13. School holidays were for operations. Summers too.

When little Randy began school, his teachers in the city of Hamilton made a common mistake, the sort of automatic connection between inner person and outer appearance that has been the default assumption since history began.

"The teachers assumed I must be stupid," says James, who was put in a class with children who had learning disabilities -- until teachers realized that he was actually very bright, only shy, and missing an ear, which made it harder for him to hear. He was allowed to sit in the front of the room, where he could hear the teacher, and his grades soared. ...

The disability version of the Heckler's Veto: “You might make the students nervous”:

As a student at the University of Kentucky, James applied to be a residence hall adviser, someone who assists other students in navigating dorm life. The supervisor who rejected him candidly told him that his odd-looking ear could put others off.

"'You might make the students nervous,'" James recalls him saying, then paused, the pain still obvious after 40 years. "These were my classmates."

In the past, disfigured people were often subject to genocide: “A couple hundred years ago, people born with craniofacial conditions, they were just putting them in a bucket of water”:

We are a society where people thrive or fail -- in part, in large part -- because of appearance. The arrangement of your features goes far in deciding who you are attractive to, what jobs you get. Study after study shows that people associate good looks with good qualities, and impugn those who aren't attractive. Even babies do this, favoring large eyes, full lips, smooth skin. Billions of dollars are spent on plastic surgery by people who are in no way disfigured, just for that little extra boost they feel it gives to them, gilding the lilies of their attractiveness.

How do people with unusual appearances fit into such a world? For most of recorded history, children born with disfigurements were wonders, portents or punishments. If they were allowed to live. "A couple hundred years ago, people born with craniofacial conditions, they were just putting them in a bucket of water," said Dr David Reisberg, an oral plastic surgeon at the Craniofacial Center.

“Those that we call monsters are not so to God”:

But even then, astute observers saw beyond externalities. Michel de Montaigne in 1595 encountered a child conjoined to the half-torso, arms and legs of an undeveloped twin (what we would now call a parasitic twin), displayed by its father for money. Montaigne noted: "Those that we call monsters are not so to God, who sees in the immensity of His work the infinite forms that He has comprehended therein."

“With malice toward none, with charity for all,” said our kindest president.

The Rights the Disabled Have under Section 504 of the Rehabilitation Act of 1973

If you work for any entity which receives funds from the federal government, the following would seem to imply that disability discrimination by your employer violates federal law:

Section 504 of the Rehabilitation Act of 1973:

No otherwise qualified handicapped individual in the United States, as defined in section 7(6), shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. (Cited in What We Have Done: An Oral History of the Disability Rights Movement - Fred Pelka, 2012)

Wikipedia's article on Section 504 adds:

Codified as 29 U.S.C. 794.
According to this law, Individuals with Disabilities are:
"persons with a physical or mental impairment which substantially limits one or more major life activities."

 where

"Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning."

In a previous post we noted cases "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." The Disability Rights Education and Defense Fund website notes another case where Congress found it necessary to pass a law undoing unreasonably restrictive Supreme Court interpretation of Section 504 and other disability rights legislation:

The longest legislative battle was fought over the Civil Rights Restoration Act (CRRA), first introduced in 1984 and finally passed in 1988. The CRRA sought to overturn Grove City College v Bell, a Supreme Court decision that had significantly restricted the reach of all the statutes prohibiting race, ethnic origin, sex or disability discrimination by recipients of federal funds.

An important decision overturned was a case where the Court interpreted Section 504 as meaning that only clients of the departments of an entity which actually received federal funds had protection from disability discrimination. Under current law, because of the CRRA, protection applies to the entire agency. If a college's engineering department receives federal funds, students in the English department are also protected.

There was also foot-dragging on implementing Section 504:

Section 504 was the last sentence in the 1973 Act. However, initially Joseph Califano, U.S. Secretary of Health, Education and Welfare, refused to sign meaningful regulations for Section 504. After an ultimatum and deadline, demonstrations took place in ten U.S. cities on April 5, 1977. The sit-in at the San Francisco Office of the U.S. Department of Health, Education and Welfare, led by Judith Heumann and organized by Kitty Cone, lasted until May 4, 1977, a total of 28 days. More than 150 demonstrators refused to disband. This action is the longest sit-in at a federal building to date. Joseph Califano signed the regulations on April 28, 1977.

The Reagan administration, in addition to attempting to weaken the Voting Rights Act, attempted to undermine Section 504 when it came into power:

Over the next several years, Section 504 was somewhat controversial because it afforded people with disabilities many rights similar to those for other minority groups in the Civil Rights Act of 1964. Throughout the Reagan administration, efforts were made to weaken Section 504. Patrisha Wright and Evan Kemp, Jr. (of the Disability Rights Center) led a grassroots and lobbying campaign against this that generated more than 40,000 cards and letters. In 1984, the administration dropped its attempts to weaken Section 504.

When any governmental agency's employees discriminate against the disabled, they are acting in the name of the taxpayers who fund them. For example, public transit organizations receive substantial federal assistance. So does every state. We know of a case where a disabled person, having his driver's license renewed, heard the state photographer say, "Whiskey, cheese, harelip." That bigoted employee was acting as a proxy for the public. When he attempted to demean, degrade and intimidate a citizen making a required license application, he represented you and me.

Whether the license applicant could have sought redress under Section 504 is unknown. Public action under Americans with Disabilities legislation and Section 504, to date, has been entirely about access, with notable success. Protection from discriminatory attitudes and acts designed to humiliate, marginalize, and disenfranchise the stigmatized disabled, hasn't even begun. As an earlier post cited:

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. - Assistant City Prosecutor Jennifer Fitsimmons

The dream of the disabled is an American dream, that one day America will rise up and live out the meaning of its creed, that all are created equal.

The Largest Minority

The US Office of Disability Employment Policy states:

Although the term is most often used to refer to differences among individuals such as ethnicity, gender, age and religion, diversity actually encompasses the infinite range of individuals' unique attributes and experiences. As the nation's largest minority — comprising almost 50 million individuals — people with disabilities contribute to diversity, and businesses can enhance their competitive edge by taking steps to ensure they are integrated into their workforce and customer base. (Emphasis added)

Comment: You'd never know it. The nation implements justice for minorities by several means: Protected class. Affirmative action. Heightened scrutiny concerning the effect of presumably neutral laws. Lawsuits concerning harassment, defamation, bullying, unequal pay, inequity in hiring practices, social exclusion. It is not that all these things necessarily belong in a liberal democratic society. In some cases they are inferior substitutes for justice. Protected class and heightened scrutiny look suspiciously like privilege.* Affirmative action, with its relationship to quotas and its adverse effect on merit hire and promotion, looks like favoritism.

But these are the currently operative ad hoc substitutes for actual justice. It is telling that people with disabilities are excluded. A news article from late 2012 concerning a child with cerebral palsy noted:

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. - Jennifer Fitzsimmons, the chief assistant city prosecutor in a rare case where legal action was taken

A year ago a courageous young woman with cerebral palsy wrote about the discriminatory reaction she often experiences in a supposedly progressive city:

I was born with cerebral palsy, and though I'm 30 years old, I didn't really accept that until I moved to Seattle last June. It was something I hid from, something I denied, and it was relatively easy to do so, because a lot of people seemed to notice other things about me before they noticed that. ... In Seattle, though, a lot of people seem to be a little unnerved by my disability, ... But I was caught entirely off guard by this sudden understanding that being alive in the only body I've got apparently makes some people uncomfortable in 2014, in one of America's most progressive cities. I moved here for books, coffee, writing, nature, food, even rain—not a daily crusade.

If she had been a member of the recognized minorities—a protected ethnicity, race, gender, or sexual orientation—the response would have included a lot of people saying, in effect, Yes, we still need to do more about the civil rights of minorities. Instead, there was a lot of backlash.

Many of those who quickly object to minority discrimination deny disability discrimination even as it is happening right in front of them. As commenter jacalope observes "The prevailing attitude seems to be that":

1. My disability isn't real
2. My disability is my own fault
3. If I tried harder I could just get over it
4. I'd magically get over it if I only tried my new acquaintance's latest diet/supplement/acupuncturist/exercise regimen

Why are these discriminatory attitudes alive and well in what Sarah Nielson called a "progressive city?" Because, since the civil rights revolution, discrimination against the minorities addressed by that revolution is subject to punishment under the laws. Social attitudes followed. "No colored need apply" notices were replaced by affirmative action. Society got the message. No one would think of telling a person of color, who described a discriminatory incident or attitude, to "just get over it."

Who is covered and who isn't covered sends a message. There's no affirmative action for cerebral palsy, for cleft palate, for little people, or for all those who are born different (unless the difference is race or gender). "There's nothing out there regarding disabilities," said Assistant City Prosecutor Jennifer Fitsimmons, above. That is, there has apparently never been a landmark civil rights case regarding a disabled person.

Again, society got the message. anonymous:

So you reject:

empathy
normal Seattle passive-aggressiveness
an obviously crazy homeless person
someone who mistakenly talks to your boyfriend instead of you
a mother who was caught in a sudden confrontation

Honey, those are all things we all deal with. It's called the real world.

An article defaming those with birth defects has resided on the Time.com website for over a decade:

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

Again, the double standard is evident. Would the public have stood for the above remark if Ms. Ivins had used the n-word instead of the h-word? For that matter, would Time have published the article unedited with the n-word?

It's unthinkable. But in the case of the largest minority, it attracts no attention.
 
 (*) "Privilege": "Private Law"

"Spoiled Identity": When the Disabled are not in "A State of Society"

In Pauline Maier's American Scripture we find:

In June 1776 the Virginia Convention ... amended the ... draft so it said that "all men are by nature equally free and independent" and had "certain inherent rights" ... "when they enter into a state of society." The statement ... freed the state of Virginia from an obligation to recognize and protect the inherent rights of slaves since ... slaves had never entered Virginia's society, which was confined to whites. - Pauline Maier, American Scripture: Making the Declaration of Independence, p. 193 (Emphasis added)

In Stigma: Notes on the Management of Spoiled Identity, Sociologist Erving Goffman wrote (synopsis):

The dwarf, the disfigured, the blind man, the homosexual, the ex-mental patient and the member of a racial or religious minority all share one characteristic: they are all socially "abnormal", and therefore in danger of being considered less than human. Whether ordinary people react by rejection, by over-hearty acceptance or by plain embarrassment, their main concern is with such an individual's deviance, not with the whole of his personality. "Stigma" is a study of situations where normal and abnormal meet, and of the ways in which a stigmatized person can develop a more positive social and personal identity. (Emphasis added)

What is significant here is that the basic human rights—normal human rights—are not guaranteed simply because a person is human, but only if society accepts the person. The "spoiled identity" which sociologists recognize in such stigmatized people as the disabled, and especially those with birth defects, often means a specific lifetime exclusion from society. The results, as implied by the following defamatory passage from the Time Magazine web site, can be devastating:

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

The sociologist notes that the effect is reduced "life chances": 

Goffman [says] “The term stigma, then, will be used to refer to ... a special kind of relationship between attribute and stereotype” (2). [1] Observing that “the person with stigma is not quite human” (3), Goffman explains that the our unconscious assumptions lead us to “exercise varieties of discrimination, through which we effectively, if often unthinkingly, reduce his life chances.”

More on the Virginia Declaration of Rights:

Edmund Pendleton proposed the line "when they enter into a state of society" which allowed slave holders to support the declaration of universal rights which would be understood not to apply to slaves as they were not part of civil society.

Molly Ivins' "Governor," if he could actually wake up with a widely scapegoated birth defect, would find everything profoundly changed. He would suddenly find himself outside of society.

And to be outside of society would be, as the framers of the Virginia Declaration of Rights implied, to be denied the "universal rights" which normal, decent people accord to each other. “The person with stigma is not quite human.”

The Targeted Minority that Got Left Out

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

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

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. - Assistant City Prosecutor Jennifer Fitsimmons

First, tentative conclusions about the formal (omitted from civil rights) and informal (lax or hostile social standards) situation of the stigmatized disabled:

• Disability is not a protected class.
• Protected class sensitivity has largely substituted for the moral obligation to be just no matter who is being targeted.
• If a group isn't in a protected class then it is not necessary to worry about discriminating against its members; that is, Open Season on those (disadvantaged people who aren't a race or a gender) not covered by the Civil Rights Act of 1964.
• Social standards (see Time Magazine's defamatory remark at the top of this article) have been substituted for the ethical standards of universal justice.
• The true significance of society's acceptance of the above Time Magazine remark isn't that is defamatory. It is that just about everybody understands that to be inflicted with the disability it refers to (or certain others) is to become a social outcast.
• For them, it is as if the civil rights revolution had never happened.

From About Dwarf Aware:

Here are some myths:
• Little people love poking fun at how they appear to others.
• Little people only date other little people.
• They must agree with being called a midget or treated as one because they are always on t.v. dressed up as funny characters.
• Dwarfs cannot handle themselves in the workplace; they scare clients away and are always absent. They need too much special equipment.

From a previous post about an article by a person with cerebral palsy:

Many of those who quickly object to minority discrimination deny disability discrimination even as it is happening right in front of them. As commenter jacalope observes "The prevailing attitude seems to be that":

1. My disability isn't real
2. My disability is my own fault
3. If I tried harder I could just get over it
4. I'd magically get over it if I only tried my new acquaintance's latest diet/supplement/acupuncturist/exercise regimen

Why are these discriminatory attitudes alive and well in what Sarah Nielsen called a "progressive city?" Because, since the civil rights revolution, discrimination against minorities is subject to punishment under the laws. Social attitudes followed. "No colored need apply" notices were replaced by affirmative action. Society got the message. No one would think of telling a person of color, who described a discriminatory incident or attitude, to "just get over it."

From "Maxwell," a person with a cleft palate:

He was renewing his driver's license when the state employee taking his picture said, "Cheese, whiskey, harelip."

He was attending a party in the home of his son and daughter-in-law, who are community college employees, when a guest who teaches at a community college started asking derogatory rhetorical questions about where he worked before retirement. The questions were such that other guests started backing away from the person the public college teacher was targeting. But none of the guests, most of whom were de facto state employees, objected to the teacher's discriminatory remarks, even when the teacher compared the disabled person to someone else they knew who was, in the teacher's words, "funny looking."

Not-in-a-protected class Open Season means that disabled people find themselves at risk of being publicly humiliated when they attend parties. In "Maxwell's" case, this meant that a party can prove unsafe even when it is comprised of two classes of people—his family, and employees of public institutions with strict anti-harassment policies—of whom one would expect better.

The above Dwarf Aware site lists facts which reveal prevalent derogatory expectations:

• Around 80% of babies born with dwarfism come from average stature parents.
• They are of the same intelligence as the more general public.
• They are surgeons, lawyers, teachers, athletes, artists, journalists, and almost every other profession you can think of.
• The unemployment rate is higher than any other able-bodied group of people.
• The “M” word, or “midget”, is offensive to most little people. It does not refer to any one type of dwarfism. It is just a bad word.
• My son has a disproportionate type of dwarfism, that means his upper arms and legs, for instance, are shorter than average. He is perfectly proportioned for who he is, but is not the same, proportion-wise as taller folks.
• Persons with Achondroplasia, (Achons), compare equally in intelligence, talent, and ability to get the job done.
• Achons have medical issues, but rarely ask for assistance. They do have the same life expectancy as anyone else.

Remedies suggested in earlier article Imagine That America Had Its Consciousness Raised:

Needed:

• A landmark disability discrimination civil rights case. ACLU, where are you? Ada.gov, where are you?
• Anti-defamation campaign (Time.com, take note!).
• A civil rights act for the disabled, since the disabled were omitted from the Civil Rights Act.
• A disability ombudsman in each state and each school district to which any adult, and any student, respectively, can go when disability discrimination occurs.
• The addition of specific disability harassment language to the existing anti-harassment guidelines.
• For Shame! campaign.  
• Ad showing a minority being bullied beside one showing disabled being bullied, saying one is just as wrong as the other.
• Spots showing celebrities saying “I'm against disability discrimination, are you?”
• Ad showing teacher rebuking student for slighting disabled classmate. 
• A speech by a national leader citing instances of disability discrimination and calling for change. 
• National leader describing incidents such as [Time Magazine's] remark as the product of irrational animus and calling for change. 
• Counseling for the disabled, to deal with the pressure to feel shame, guilt, social inadequacy, etc.
• Proactive response training, such as how to respond if someone says, “How nice you're in the choir—it must help with your speech.”
• The addition of ethical training to the training of physicians and other medical staff, to remind them that it is unprofessional to treat disability as a social sin rather than a morally neutral medical condition.
• Institutions (meeting places, organizations, "meet people like you" events, etc.) to counteract the social isolation of many disabled people.

Medical discrimination is a surprisingly widespread problem. Not only support personnel but physicians themselves, in many cases, do not treat stigmatizing disabilities as morally neutral medical conditions (which is what their professions require). They treat disability—particularly when resulting from birth condition—as a mark of shame. In such cases the disabled patient is treated as if he or she should feel guilty, and anticipate substandard medical care as all they can expect under the circumstances.

Example: The visibly disabled elderly patient who found that his new physician, without giving a reason or offering a substitute, refused to continue his sleep medication.

Introduction: Social Attitudes and the Disability Cohort

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

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

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. - Assistant City Prosecutor Jennifer Fitsimmons

 Because of the sensitive nature of this weblog, it is published under a pen name: John M. Halberg. While the primary focus will be as the blog title suggests, this blog is about all of us who bear stigma because we are physically different—little people (Google "dwarf tossing"), those we call retards, those we call spastics, those we label with the h-word, as the late Ms. Ivins does above, and others—who are, as her folksy phrase implies, pervasively targeted in our society. These pages are about the civil rights of this Disability Cohort. This weblog seeks to document the current "I don't care" climate of disability discrimination, and to propose solutions.

A Google search for "cleft palate blog" shows posts mainly about children, and advice to parents of children with this birth condition. These are valuable and needed, but there is an absence of material about the civil rights of these children when they grow up, about the current social attitudes towards those with clefts, and about the rest of the Disability Cohort. What follows are initial observations, interspersed with comments (treated as "anonymous" even when they aren't) found on other weblogs:

People with cleft palates bear two stigmas: the stigma of disability; and the stigma of birth condition, which is considered guilt by many. An example of the latter from the 1st Century: Paraphrasing John 9:2, "Master, did this man sin . . . that he was born thus?"

Anonymous - This is sweet i have a cleft lip and palate also and i had an amazing doctor i am 18 and not many people can tell i was born with it :) the only thing i would like to warn your is when he goes to school he may get made fun of cause i did a lot eventually it will stop once the kids mature but some remarks can be hurtful i was never angry abt being born with this i actually like being different in this way....my little brother has it and i am giving him advice all the time about the bullying espeacially.

Our society, in part with the aid of the Americans with Disabilities Act (ADA), is respectful with certain other types of disabilities. A couple years ago I used public transport in such European cities as Berlin, Budapest, Vienna, Munich, Paris, and Amsterdam. There was virtually no wheelchair accommodation. Characteristically, when I saw someone in a wheelchair, someone was along to help. Here, we wait patiently while a bus loads someone in a wheelchair (as decent people should). It is socially unacceptable to stare (again, as it should be). As with AIDS, an ethical public relations campaign has largely removed the stigma from these disabilities. It can be done.

The attitude revealed by the Time.com passage which begins this post endangers the mental health of the stigmatized disabled. A courageous artist, Sarah Marie Love, posted:

Being born and growing up with a deformity isn’t easy, as people can use this as an excuse to be a bully. Name calling was a huge problem for me at school, and this made me weary of those around me in all social issues. The most hurtful comment I received was whilst I was having dinner at my Secondary school. A very stupid boy in a year above me called me Bubba. He was a character in the film Forest Gump whose bottom lip stuck out far due to having “big gums.” I hated people commenting on the way I looked. As far as I am concerned it was no ones business and one day I wouldn’t have that intrusive lip, but reminding me of this didn’t take away the hurt I felt inside. Also, people (including adults) thought they had right to remind me every day that my lip stuck out. Walking past down the street or in the school corridor I would often see people pushing their lip out in a way to make fun of me.
When the new cleft unit opened at Guys Hospital I began to see the unit’s psychotherapist. I found her a great help, as I also suffered from General Anxiety Disorder and Obsessive Compulsive Disorder. It isn’t clear if dealing with the bullying and constant treatment was the course of my mental health problems, but I learned that research has showed that a higher percentage of children with harelip and cleft palate are more likely to than those who don’t. (Emphasis added.)

Some of the comments, including the following, are in response to Ms. Love's post:

Anonymous - Hi Sarah! Just read your amazing article on your life with a cleft lip and palate. You sound amazingly self confident and well adjusted and I am happy for you. My son was also born with a bilateral cleft lip and palate and is beautiful. He however despises the appearance of his lip which is protruding somewhat and his upper lip is scarred. He is an introvert and a very sensitive child. I wish him all the happiness and God"s blessings in life, but need help to build his self confidence and to equip him with tools to cope in the outside world. He seems to be scared to go to the "big" school and I am not sure whether I should hold him back for another year to protect him against bullies.
I t seems as if there will never be enough a mother can do to help a child who experience him/herself as different. What do you suggest?

A reciprocity principle: If a remark or an action or an attitude would be seen as discriminatory if directed toward a minority, it is discriminatory for us. We have exactly the same civil rights, even if the justice system does not act as if we do.

Anonymous - to Toetie. hi my name is Kiranmai but people call me Karen.. i was born with a cleft and lip pallet also. i am know 14 years old and going to turn 15 soon. this is my story. before when i was just lilttle kid i didn't think i was different or anything there some school who have kids that bully and there some that most r okay with. i wasn't bullied until i got to middle school. but there was little problems in 5th grade. i didn't relize i was born with this condition as soon i as began to grow up and i then notice mt face was different then other. no matter what you do even if u send ur son to school there is no chance that he will not get bullied. i am stilling being bullied i come home cry and sometimes my parents see and ask me y. everyone stares at me they all make fun of me once they look at my face they all say UHHGGG!!! theres no way to stop that.. i even feel like sucide. everyone child who is born with a condition like this or other that is part of out will be bullied. theres is no chance he will not. some day he has to face throuh but he will have nice friends who will care for him like i have they always say don't think of other they just dont get what im going throuh. best of luck for him. im about to get my surgery this dec. i will be 15 then.. so i hope u understood no matter if u held him back once he go bak he will still be the one to be stared and bullied..the teachers and concerls just gives the kids warning but sometime their there to help but most of all year there not.

The Google search site:ada.gov civil rights turns up references referring to the act as a civil rights act (and you will also find "affirmative action" on ada.gov). The ADA is no such thing. The ADA has done good work concerning accommodations for the disabled in the workplace and in public transit; but neither it, nor any other element of our decent society has done anything about defamatory remarks (again, note the passage from a national magazine which begins this post), or about the inescapable climate of discrimination. Just look at the anguish in the above comments.

Anonymous - hi sarah. i read your article. I have a cleft lip palate, sometimes it feels torture for the rest of my life. but life must go on. :) even i've undergone 3major operations still have speech problem. :) but its okey.. i love my life now. well i should. :) i will link u on my blog hope ull do the same. thanks sarah. :)

I'll conclude with quotes from Courts and the Civil Rights of the Disabled (also cited above):

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." ...

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. ...

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. ...

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.