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
My dream is an American dream, that one day America will rise up and live out the meaning of its creed, that all are created equal.
This is a collection of notes, with comments, from What We Have Done: An Oral History of the Disability Rights Movement - Fred Pelka, 2012
In the first post of this weblog, we wrote:
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.
As Pelka writes, "People with disabilities are an oppressed minority with protected rights." (p. 3) He continues:
Robert
Funk . . . has recounted the history of what he calls "the humanization
of disabled people" in America as the journey of individuals with
disabilities from "objects of pity and fear . . . who are incapable and
neither expected nor willing to participate in or contribute to society"
to a "disability rights movement" which maintains that "disabled people
have the constitutional and human right to equal citizenship, that is,
the right to be treated as a person worthy of dignity and respect." (p. 4)
Our first post continued:
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?"
Pelka:
Americans with disabilities have generally found themselves, as the activist Justin Dart Jr. put it, the nation's "poorest, most oppressed group." ...
"The persistent thread within the Christian tradition," writes theologian and sociologist Nancy Eiesland, "has been that disability is either divinely blessed or damned: the defiled evildoer or the spiritual superhero." ... [In parts of the third world] religious tradition regards disability as a form of "divine punishment" for alleged sinfuless. (p. 5)
Social attitudes can render the disabled the scapegoats of our society:
Rosemarie
Garland-Thomson: "According to [Melvin] Lerner, the human need for
order and predictability gives rise to the belief that people get what
they deserve or that the way things are is the way they should be....if
something 'bad'—like having a disability—happens to someone, then there
must be some 'good' reason—like divine or moral justice, for its
occurrence." ... it results in victim-blaming and scapegoating of those
who are different. (p. 6)
In This is the Son of Kings, we suggested that the classic tragedy Oedipus the King paralleled the traditional treatment of a baby with a club foot disability in some Greek city-states. Pelka:
According
to [Henri-Jacques] Stiker, the religious systems of Graeco-Roman
antiquity were even less tolerant . . . In both ancient Athens and
Sparta infants with disabilities were "exposed," taken "outside to an
unknown location and [left to]...expire in a hole in the ground or drown
in a course of water." The birth of disabled infants was believed to
"signal the possibility of misfortunes and are [sic] explained by the
anger of the gods. Deformed infants are exposed because they are
harmful, maleficent. They implicate the group." (pp. 6-7)
In Internalized Discrimination: You're Not Supposed to SAY That, we suggested a powerful social pressure to remain silent. Pelka:
Robert
Garland: "[The disabled were generally held in disdain] both by their
families and by society at large. ... The disabled themselves were
encouraged to feel a certain shame for their own physical condition."
Disability rights activists today would call this "internalized
oppression"—the absorption by oppressed people of the judgments and
assumptions of the majority culture. p. 7
In the last note taken so far from Pelka's book:
Tim Cook: "Persons with disabilities were believed to simply not have the 'rights and liberties of normal people.'" (p. 11)
In a post November 26, 2014 we wrote:
“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)
The post continues:
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). 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.”
Back in 2013 the post Imagine That America Had Its Consciousness Raised included the following among its recommendations:
Institutions (meeting places, organizations, "meet people like you" events, etc.) to counteract the social isolation of many disabled people.
An article in Huffington Post, iPhone App Connects People With Cerebral Palsy, introduces an interesting idea: a special-purpose communication app:
The idea for Candor CP materialized when Alexis learned the power of connecting with other people who have CP over social media. ... His main issue is that whatever he posted on existing social media was public, had his name associated with it and would often get viewed by a larger audience than he preferred. ... Candor CP lets users chat with each other anonymously. It encourages open, safe communication about issues that may be too private to talk about on public social media. The sign-up process is simple. You create an account using an email address and a password. You don't have to worry about usernames, avatars, share settings or linking to Facebook, Twitter and other social media sites. When you post a comment, the app assigns an avatar that is unique to each thread. ... Alexis interacts with adolescents and young adults who have CP on his blog. ... While sharing his story, he realized that young adults with CP would benefit from connecting with other people their age who have the same disability. There wasn't a supportive community with people like him years ago.
Perhaps a Let's Talk app, or a You're Not Alone app, for those wrestling with the isolation and stigma of disability, would fit under the What We Can Do tag. Preliminary thinking is that it could have interest group areas (CP, those with Cleft Palate, Little People, etc.). A way for those interested to offer suggestions to the app designers.
On a related topic, Daniel J. Vance has a long-running newspaper column on disability topics. Here's something he said about The Loneliness of the Disabled Person:*
Especially for widowed or single people with any type of disability, the holiday season can become a very lonely stretch, often involving depression. ... People sometimes tell me they don't know anyone that has a disability, but statistically that isn't possible, unless, of course, you were raised by wolves and live alone in the mountains. Perhaps every individual residing in a nursing home, for instance, has a disability.
After they say they don't know anyone, I often ask something like this: So you don't know anyone with dementia, cerebral palsy, dyslexia, severe arthritis, renal failure, chronic illness, multiple sclerosis, an amputation, schizophrenia, lupus, traumatic brain injury, deafness, blindness, cerebral palsy, autism, Down syndrome, an intellectual disability, an ostomy, cleft lip or palate, epilepsy, glaucoma, spina bifida, paralysis, fetal alcohol syndrome, stroke, muscular dystrophy, or hundreds of other disabling conditions, or anyone with a significantly impaired ability to walk, talk, eat, sleep, drive or work?
Recently, I searched online for academic research to back up the claim people with disabilities experience more loneliness year around—not just during the holidays—and actually found too much information to fit into any one column. ...
So people with disabilities, in general, experience more loneliness than the rest of the population, sometimes because of being less verbal or unable to physically get out to meet others or just plain due to having fewer social skills.
Nicole Luongo tells My Cerebral Palsy Story:
My mom took me to the doctor for a follow up visit and expressed her concern. He looked at her straight in the eye and said, “she should not be walking at all. She is a miracle.” Learning to walk without assistance was not easy. First, I wore braces up to my knees. Then, just in time for Kindergarten, I wore full-length hip braces. As you can imagine, the other kids teased me constantly.
Eventually, I learned to walk on my own. Now, as an adult, I am experiencing problems associated with CP and the constant stress on my body. I tire easily when walking. If I walk too much, I can experience back pain. I have problems stepping up curbs with my right leg – something I never had problems doing until five years ago. This continued to be a such a problem that I asked my orthopedist for a cane. I couldn’t bring myself to use it. I could continue to have these problems and more as I age, possibly requiring the use of a wheelchair. I do not want this to happen to me!
Although I work out and try to stay active, my balance and flexibility are poor due to CP and the tightness (spasticity) it causes. Selective Dorsal Rhizotomy (SDR) is the only procedure that can permanently eliminate the tightness in my legs. This surgery will allow me to do things I’ve never even imagined – walk with greater ease and fluidity, have better balance and flexibility – just to name a few. One thing I’d love to do is ride a bike. SDR may make that possible!
Read her blog for the story of her SDR surgery.
Independencechick (read her blog!) exclaims:
Am I saying PWDs and their loved ones should just completely ditch all services meant to help them? That’s not my call. It’s an individual decision you must make based on where you live, what you need, and what you want. What I am saying to you is that I think we’re spending way too much time on programs, and not enough time helping PWDs acclimate to society and feel like a real part of it. Instead of shuffling from service to service, what if PWDs were born into their communities and became community members? And, if programs are absolutely necessary: what if the people running those programs started paying attention to the people they’re trying to serve?
Note that some disabilities don't have services and programs, beneficial or otherwise, particularly when they become adults. Imagine That America Had Its Consciousness Raised
(*) Alan Sillitoe's The Loneliness of the Long Distance Runner is a classic published in 1959
I'd like to be assured that if I stand up for
myself against an aggressor, I'm going to be supported, not judged. - Sarah Neilson, below
Kenji Yoshino last week in Slate:
The
Supreme Court has deemed “political powerlessness” to be a factor in
determining whether a group could receive the heightened judicial
protection that women or racial minorities currently receive. ...
The
paradox of political power is that a group usually must have a massive
amount of political power before it can be deemed politically powerless
by the Supreme Court. Groups that are truly politically powerless
usually cannot garner the attention of any branch of government,
including the judiciary.
Professor Yoshino was talking about gay marriage jurisprudence, not the litigative status of the stigmatized disabled, but the situation he describes applies to us: we are not even powerful enough to be considered worthy of care as politically powerless. "A State cannot so deem a class of persons a stranger to its laws," said the Supreme Court in Romer V. Evans, but in the current situation discrimination against the disabled is largely beyond legal regard*.
Being Invisible: 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)
The disabled are also largely beyond social moral regard*: Society, instead of objecting to public discrimination against the disabled, pretends that discriminatory conduct is normal social action. Sarah Neilson, in The Stranger, described incidents she experienced:
When
I remarked to a bookstore owner about the proliferation of memoirs in
this age, she told me she had tired of, in particular, cancer memoirs.
"Cancer is a reality," she said. Then she looked at me with sad eyes.
"But cerebral palsy is a reality, too." I said, "Uh, yeah, and I don't
write about it," and left the place in a daze. I've never had anyone
assume I was sick, so at first I didn't even realize that she was
comparing cerebral palsy to cancer. I've never felt comfortable going
back in; I'm a little uneasy walking by. The worst part is knowing that
she thought she was being nice.
So did the spandex-wearing
passerby who told me on a steep street, "You are so brave." I told him I
was offended; he said, "I wish I could help you." He didn't take in a
word I said. ...
One night, after a beautiful day of hiking, we
passed a guy on the way home who hassled my boyfriend for money. I was
prepared to ignore the question. But when I walked by, he didn't ask me
for money. He shouted, "WHO DID THIS TO YOU?! WHO DID THIS TO YOU?!"
I kept walking. Then he shouted, "WAS IT HIM?!"
That
scared the shit out of me. He'd accused my boyfriend of violence and
looked quite ready to commit some himself. From all my fear, and my
anger, and the burning insult of the accusation, I yelled back:
"BIRTH! I WAS BORN TWO AND A HALF MONTHS EARLY, YOU FUCKER!"
He ran.
I
was relieved. Then I noticed several people across the street, all
staring at me. Were they on his side? Did no one see the potential
danger of the situation? Remember the crutches? If someone goes after
me, I'm fucked, y'all. I'd like to be assured that if I stand up for
myself against an aggressor, I'm going to be supported, not judged.
It's
no better, though, to be simply ignored. A Sea-Tac Airport TSA agent
fixed his eyes on my boyfriend while asking for my boarding pass. When I
asked him to address me directly, he said, "Oh!" and apologized. "I'm
used to talking to... you know," he said, gesturing in inscrutable
circles.
"To what?" I asked.
"Talking to people and... talking to their caretakers."
Helplessness
is an offensive assumption, but one I can swiftly disprove. How,
though, can I convince people that there is nothing tragic about the way
I walk? I ran into a pair of sweet parents with three adorable
children, and the youngest child said, "She has a owie," so I explained
that I was born this way and didn't get hurt.
"Some people need tools to help them," added the mother. "It'll heal."
"No,"
I said lightly, "it won't heal, but that's okay." I don't get a body
other than this one, so it has to be okay. Why can't we tell our
children, and each other, that all bodies are different, that some need
more help with certain things than others, and that's fine?
Is it because it's not?
A comment to Ms. Neilson's article scolded her for objecting to this sort of disability discrimination:
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.
No, these are things which, in the context of the person who is different, are intended to marginalize them. "Being treated as different" is a recognized indicator in anti-harassment guidelines. Remarks and actions which would be innocuous in ordinary circumstances are instantly recognized as singling out the disabled person. They are not part of the ordinary rough-and-tumble of social interaction. They are intended to demean and degrade the disabled.
Ms. Neilson was not being overly sensitive in calling out disguised discrimination. She was subverting a smelly little orthodoxy which says the disabled are not supposed to stand up for themselves against an aggressor.
Some of the epigraphs to an earlier post, Internalized Discrimination: You're Not Supposed to SAY That:
And my feeling wasn’t righteousness or pride in having told the truth, it was horror that I had committed such a faux pas,
and that if things like that happened you just weren’t supposed to talk
about them. And you certainly weren’t supposed to announce it at a
dinner party. - Kate Christensen
The
political sphere is where you engage with your humanity. You have not
merely a right, you have an obligation to participate, to make sure the
people, as a whole, are able to make good decisions, and pass good laws
and treat you as a human. And if one group subjugates another, if it
says 'You can talk about anything you want, except everything that matters to you,' then you are not a full member of the polity. - Eric J. Miller (Emphasis Added)
The averted gaze and a smothering of empathy - Matthew Scully
The just-world hypothesis works, in part, by blaming the stigmatized disabled for the pervasive social targeting which marginalizes and disenfranchises them. A
familiar experience of our people is the case where our family,
friends, or co-workers imply that we should have done better,
considering our background; and completely ignore the crucial fact of
our lives: Discriminatory social attitudes reduce our life chances. It
is considered divisive and socially unacceptable to speak out about our
situation.
We
who write this remember that most of our lives we ourselves kept
silent. And there is an internal struggle against convention every time
we add another post to this weblog. A struggle against the tendency to feel guilty about having been honest
about a situation which is widely covered up.
(*) In Age of Ambition Evan Osnos speaks of "a deeper problem underlying China's rise: pervasive corruption and a moral disregard that had already led to milk tainted by chemicals reaching the market." (Emphasis added)
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"
This follows on a post from July 2013.
Sarah Blahovec posts on disability issues.
The Disability Rights Education & Defense Fund has informative articles and was the source of some of the following links.
The U.S. Department of Education posts Dear Colleague letter regarding disability harassment:
When harassing conduct is sufficiently severe, persistent, or pervasive that it creates a hostile environment, it can violate a student's rights under the Section 504 and Title II regulations. A hostile environment may exist even if there are no tangible effects on the student where the harassment is serious enough to adversely affect the student's ability to participate in or benefit from the educational program. Examples of harassment that could create a hostile environment follow.
Several students continually remark out loud to other students during class that a student with dyslexia is "retarded" or "deaf and dumb" and does not belong in the class; as a result, the harassed student has difficulty doing work in class and her grades decline.
A student repeatedly places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates' ability to enter the classroom.
A teacher subjects a student to inappropriate physical restraint because of conduct related to his disability, with the result that the student tries to avoid school through increased absences.7
A school administrator repeatedly denies a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required related to the student's disability.
A professor repeatedly belittles and criticizes a student with a disability for using accommodations in class, with the result that the student is so discouraged that she has great difficulty performing in class and learning.
Students continually taunt or belittle a student with mental retardation by mocking and intimidating him so he does not participate in class.
When disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident(s) promptly and respond appropriately.
Disability Harassment Also May Deny a Free Appropriate Public Education
Disability harassment that adversely affects an elementary or secondary student's education may also be a denial of FAPE
How to File a Discrimination Complaint with the Office for Civil Rights:
Discrimination on the basis of disability is prohibited by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (Title II prohibits discrimination on the basis of disability by public entities, whether or not they receive federal financial assistance).
A complaint may be filed by mail, by email (ocr@ed.gov), or by online complaint form: http://www.ed.gov/about/offices/list/ocr/complaintintro.html
Remember the reciprocity principle:
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. - Introduction: Social Attitudes and the Disability Cohort
On November 13, 2014, Disability Scoop reported:
The Obama administration is reminding schools of their wide-ranging responsibilities to students with disabilities who struggle with speech and other communication difficulties.
In guidance [PDF] issued Wednesday, federal officials said the nation’s public schools have obligations under three separate laws to “ensure that communication with students with hearing, vision and speech disabilities is as effective as communication with all other students.”
An advocate for the civil rights of the disabled warned of cases where this process may be administered in a discriminatory fashion:
Denise Marshall at the Council of Parent Attorneys and Advocates, a special education advocacy organization, said her group welcomes the guidance to schools, but she worries that it is not clear enough and could lead to further hurdles for students.
“Our members have seen a lot of schools try to force a student to use a communication aid or service that is clearly not appropriate just to rule it out. This causes significant delays and makes many students feel like laboratory test subjects and robs them of their dignity,” Marshall said.
From previous posts on the causes of the tendency to subject the disabled to discriminatory treatment:
“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)
The post continues:
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). 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.”
From Here and There in Disability Discrimination:
Some time ago ABC News reported
another cerebral palsy discrimination case: “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.”:
Jennifer
Fitzsimmons, the chief assistant city prosecutor for this case, says in
the three years she's been in this role, she's never seen anything like
this.
"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."
After
Fitzsimmons reviewed the Knight family's complaint, a police report
based on a phone call from the Knight family, and the video captured by
[her mother-in-law] Prince, she decided to press charges. ...
Bailey,
who works as a truck driver, was charged twice. He was originally
charged for aggravated menacing, a misdemeanor of the first degree. In
this charge, the victim was Knight, an incident she says took place the
same day as the bus stop scene.
Bailey, she said, "was swinging a tow chain on his porch, saying he was going to choke me until I stopped twitching. I sent my kids with my mother-in-law to leave with them. My husband called the sheriff." ...
"I don't think this sentence will change things because it hasn't so far," said Knight.
Knight says living next door to the Baileys affects their everyday lives.
Just
last summer, said Knight, 9-year-old Joseph Bailey came over to play
with Knight's children and brought over a pocket knife, threatening to
"cut [Hope] up," followed by name calling. That harassment continued
into the school year.
Since the bus stop incident, Knight has
spoken with the bus driver and the school's principal. Knight now drives
Hope to school every day while her other two children ride another bus
to school.
Hope was born 29 weeks premature after Knight was
involved in a head-on auto collision. When she was born, Hope weighed
only two pounds, 12 ounces, which caused several medical problems
resulting in two brain surgeries. Knight says her daughter fought for
her life the first two years.
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 Fitzsimmons. "I think conversation
starts progress, and I think if it can bring something else to light, it
would be good." (Emphasis added)
We reported on previous cerebral palsy cases here and here.
We noted the double standard in respect to the civil rights of minorities and the civil rights of the disabled here.
Here we asked for a landmark disability civil rights case.
In 2004 Martha Nussbaum discussed the idea of shame as an instrument of public policy. Shaming those who willfully degrade and disregard the public good, it was argued, would advance civil society. She said:
Shame has been a prominent topic in recent discussions of punishment. Theorists and practitioners have favored bringing back the blush on the face, so to speak, punishing people by some form of public humiliation instead of a fine or community service. Shame punishments have a long history: Consider the "scarlet letter" and the pillory. The recent revival of interest in such punishments is closely connected with a sense (on the part of communitarians) that we have lost our public sense of shame, the collective social boundaries that shame once policed.
Nussbaum put this in the context of disability discrimination:
On the other side, our society also has been thinking a lot about how to protect citizens from shame. One can see this in particular in recent public debates about citizens with disabilities, where much attention is given to how both employment and education can be non-stigmatizing. ... An interest in shame in punishment is ultimately inconsistent with respect for the equal dignity of all citizens.
A characteristic of disability stigma is the tendency to dehumanize disabled people, denying them respect and dignity. Scapegoating—the tendency to project fear of one's own faults on a targeted group—underlies the “disgust” which precedes shame:
As
psychological research shows, people tend to project disgust properties
onto groups of people in their own society, who come to figure as
surrogates for people's anxieties about their own animality. By branding
members of these groups as disgusting, foul, smelly, slimy, the
dominant group is able to distance itself even further from its own
animality.
Emotions such as anger can produce corrective action. Nussbaum observes, “Some emotions are essential to law and to public principles of justice: anger at wrongdoing, fear for our safety, compassion for the pain of others, all these are good reasons to make laws that protect people in their rights.”
But shame and disgust are nonpolitical in a liberal society:
I think that even the moralized form of disgust is problematic, for two reasons. First of all, it is frequently a screen for the more primitive kind of disgust. When people express disgust about a group whom they take to be a source of social decay, citing moral grounds, there is often something much uglier going on. ... Second, even when the moralized disgust is not a screen for something else, it is ultimately an unproductive social attitude, since its direction is anti-social. Anger is constructive: Its content is, "This harm should not have occurred, and the imbalance should be righted." Most philosophical definitions of anger include the thought that the wrong should be punished or somehow made good. Disgust, by contrast, expresses a wish to separate oneself from a source of pollution; its social reflex is to run away. (Emphasis added)
In "Spoiled Identity": When the Disabled are Not in "A State of Society" this weblog noted:
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.
Martha Nussbaum notes the collectivist impulse motivating many shamers:
The
prominent defenders of the appeal to disgust and shame in law have all
been communitarians of one or another stripe ([Lord] Devlin, [Amitai]
Etzioni, [Leon] Kass), and this, I claim, is no accident. What their
thought shares is the idea that society ought to have at its core a
homogeneous group of people whose ways of living, of having sex, of
looking and being, are defined as "normal." People who deviate from that
norm may then be stigmatized, and penalized by law, even if their
conduct causes no harm.
Such surrender to conformism is contrary to the liberalism underlying the founding of the United States:
My
study of disgust and shame shows that these emotions threaten key
values of a liberal society, especially equal respect for people and for
their liberty. Disgust and shame are inherently hierarchical; they set
up ranks and orders of human beings. They are also inherently connected
with restrictions on liberty in areas of non-harmful conduct. For both
of these reasons, I believe, anyone who cherishes the key democratic
values of equality and liberty should be deeply suspicious of the appeal
to those emotions in the context of law and public policy.
Further reading in Martha Nussbaum's thought on human dignity:
Let’s start with an assumption that is widely shared: that all human beings are equal bearers of human dignity. It is widely agreed that government must treat that dignity with equal respect. But what is it to treat people with equal respect in areas touching on religious belief and observance? ...
On the whole, the accommodationist position has been dominant in U. S. law and public culture - ever since George Washington wrote a famous letter to the Quakers explaining that he would not require them to serve in the military because the “conscientious scruples of all men” deserve the greatest “delicacy and tenderness.” - Veiled Threats [NYT], 2010
Poet Stephen Kuusisto of Planet of the Blind writes:
Every day I wake up and read horror stories about the disabled—some stories come my way via social media, others from traditional news sources. Whatever their source they all have the same sub-text: whether the abuser is a policeman, a social worker, a family member, a bureaucrat—disability life is still imagined to be reduced life even 24 years after the passage of the Americans with Disabilities Act. Note the word “imagined”—all of the abusers in the articles below imagined their victims were negligible people, or worse, weren’t people at all. The sheer breadth, the legion of these stories, tells us that these ugly imaginations are fed like bacteria in a petri dish. I’ve heard ugly sermons where disability is a metaphor for lack of faith; heard ugly radio where social services for the disabled are described as nothing short of fraud; heard college professors demeaning students with disabilities; heard bureaucrats and physicians and merchants all say in varying tones of disgust or approbation that they don’t have time for disability—this human condition thing is so inconvenient.
Concerning medical discrimination, William Peace of Bad Cripple writes:
I need to find an internist in the Syracuse area. With a working cell phone I made dozens of calls this morning. I contacted 20 different internists--not one physician would take me on as a patient. The reasons varied.
"The office is not wheelchair accessible".
"Dr. So and So does not accept patients who are paralyzed. You need to see a specialist".
"We do not have an accessible exam table".
"We do not take your insurance carrier".
"Dr So and So is not accepting new patients. The office cannot recommend another physician ".
... Within 90 minutes the proverbial light bulb went off--cold calling an internists office was a waste of time. ... for much of my life I have been refused as a patient. ... The sad fact is well over 20% of people with a disability are turned away from doctor offices.
Cerebral palsy writer Independence Chick writes:
But then I realized that on the other side of the coin are people who scream, “Entitlement!” whenever the PWD [Person With Disability] is given any latitude at all, or any particular help that the temporarily able-bodied population can’t access and in fairness, should not access. These are people who claim PWDs shouldn’t have SSI because it’s “living off the government.” It’s teachers who claim that, “Yes, Melissa has dyslexia, but she shouldn’t be read aloud to during tests–that’s an entitlement and unfair to the other kids.” It’s county social workers who claim adults with disabilities are “entitled” to group home placement, but not to lives of their own. That’s being “uppity” and “entitled.”
That's what disabled people are called if they are not humble and apologetic. “Uppity.” One of us worked the last few years before retirement as administrative support for a public transit vehicle maintenance shop. A co-worker told him the mechanics considered him “stuck-up.” (Since he spent decades, before he confronted the climate of discrimination, playing what Spike Lee calls the “minstrel” and making self-deprecating remarks in order to buy acceptance, he considered “stuck-up” a complement.)
Some time ago ABC News reported another cerebral palsy discrimination case: “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.”:
Jennifer Fitzsimmons, the chief assistant city prosecutor for this case, says in the three years she's been in this role, she's never seen anything like this.
"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."
After Fitzsimmons reviewed the Knight family's complaint, a police report based on a phone call from the Knight family, and the video captured by [her mother-in-law] Prince, she decided to press charges. ...
Bailey, who works as a truck driver, was charged twice. He was originally charged for aggravated menacing, a misdemeanor of the first degree. In this charge, the victim was Knight, an incident she says took place the same day as the bus stop scene.
Bailey, she said, "was swinging a tow chain on his porch, saying he was going to choke me until I stopped twitching. I sent my kids with my mother-in-law to leave with them. My husband called the sheriff." ...
"I don't think this sentence will change things because it hasn't so far," said Knight.
Knight says living next door to the Baileys affects their everyday lives.
Just last summer, said Knight, 9-year-old Joseph Bailey came over to play with Knight's children and brought over a pocket knife, threatening to "cut [Hope] up," followed by name calling. That harassment continued into the school year.
Since the bus stop incident, Knight has spoken with the bus driver and the school's principal. Knight now drives Hope to school every day while her other two children ride another bus to school.
Hope was born 29 weeks premature after Knight was involved in a head-on auto collision. When she was born, Hope weighed only two pounds, 12 ounces, which caused several medical problems resulting in two brain surgeries. Knight says her daughter fought for her life the first two years.
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 Fitzsimmons. "I think conversation starts progress, and I think if it can bring something else to light, it would be good." (Emphasis added)
We reported on previous cerebral palsy cases here and here.
We noted the double standard in respect to the civil rights of minorities and the civil rights of the disabled here.
Here we asked for a landmark disability civil rights case.
Another six months of Monica, have mercy; I don't care if it harelips the Governor. -Molly Ivins, Time.com
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). 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.”
