Equality for People with Disabilities, Then and Now

Vol. 31 No. 6

By

Rhonda Neuhaus, MA, JD, is Policy Analyst for Government Affairs at the Disability Rights Education and Defense Fund.

Cindy Smith, MS, CAS, JD, is Senior Policy Counsel at the National Disability Rights Network.

Molly Burgdorf is Senior Advisor for the Administration on Intellectual and Developmental Disabilities, Administration for Community Living, U.S. Department of Health and Human Services.

Disability Rights Through the Mid-20th Century

By Rhonda Neuhaus and Cindy Smith
(Special thanks to Silvia Bruckback)

The laws of any nation reflect societal values. Historically, the laws of the United States devalued persons with disabilities as society as a whole viewed such persons as a group of people to be pitied, ridiculed, rejected, and feared, or as objects of fascination. Persons with disabilities were seen as objects of charity or welfare or as needing to be subjected to medical treatment or cure. As a result of these views, persons with disabilities were denied basic human rights (as is quite frequently still the case today). Early laws and actions through the late 20th century reflected these beliefs. Since that time, the country’s laws and policies have evolved and have been enacted with the growing assumption that persons with disabilities should be full and equal participants in all aspects of society.

Policies prohibiting community participation and civil rights. These early attitudes developed in Europe and followed American colonists to the United States. Views of persons with disabilities and subsequent policies resulted from a view of humanity that was common at the time that combined magic, religion, medicine, and science. For example, an early policy in the Massachusetts Bay Colony required the bodies of stillborn children to be examined for witchcraft. By the 1800s, persons with disabilities were not only viewed as evil omens resulting from witchcraft or punishment to parents but also as medical anomalies to be studied.

The focus of the 17th and 18th centuries was on the simple goal of survival in the colonies. Persons with disabilities were seen as being unable to contribute to this goal and therefore were viewed as being dependent on others for care. The dependency that was created resulted in persons with disabilities being seen as unhealthy and defective.

A central concern of the colonies was on determining residency because persons deemed dependent became the responsibility of the colony of residency. This concern resulted in many colonies finding creative ways to get around this responsibility, such as moving people in the night to locations outside the colony of residence. The need to provide care (or, alternatively, to remove people from the jurisdiction’s responsibility) and the view of persons with disabilities as dependent created the need for institutions. Almshouses, workhouses, asylums, and other types of institutions became commonplace in the United States during that period.

In 1614 the first law in Massachusetts regarding the care and treatment of “Children, Idiots, Distracted Persons, and all that are strangers or new comers to our plantation” was passed. Soon after, the colonies began to enact “poor laws” or “ugly laws,” following the precedent that had been set in England.

Ugly laws were common from the mid-1800s through as late as 1974, when Chicago repealed its law. The Chicago Municipal Code Sec. 36034 stated, “no person who is diseased, maimed, mutilated or in any way deformed to be an unsightly or disgusting object or improper person to be allowed in or on the public ways or other public places in this city, or shall therein or thereon expose himself to public view. . . .”

By 1830 almost every state had an almshouse following the model in England’s poor laws. The purpose of the almshouses was to shelter those considered unwanted or unable to contribute to the community. Horrid living conditions and abuse were common in the almshouses, which led to action by New Englander Dorothea Dix and others for supervision and standards. Dix advocated for improved care and treatment in institutions under state supervision. In 1846 Massachusetts enacted legislation to create a public facility for persons with “feeblemindedness.”

The rise of the eugenics movement resulted in policies not only to institutionalize person with disabilities but also to sterilize them. In 1883 Englishman Francis Galton termed the word eugenics. Eugenics was a widely accepted policy in the late 1800s and early 1900s. The eugenics movement posited mental and physical impairments as the reasons for social problems such as poverty and crime; the remedy to these social problems, therefore, lay in such public policies as compulsory sterilization, restricted immigration, restricted marriage, and institutionalization, with the goal of keeping the less-desirable genes from being passed to the next generation. By 1897 half the states had passed laws declaring marriages between people deemed “insane” or “feebleminded” null and void. In 1907 Indiana passed the first sterilization law, and by 1930 some 28 states had enacted laws authorizing sterilization of those deemed unfit.

One of the most infamous cases demonstrating society’s adoption of eugenics and the stigmatizing attitude toward persons with disabilities is Buck v. Bell, 274 U.S. 200 (1927). Justice Oliver Wendell Holmes Jr., writing for the Supreme Court, upheld Virginia’s Sterilization Act of 1924, and in upholding the statute and ruling that Carrie Buck’s rights under the 14th Amendment had not been violated stated, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.” Also, between the mid-1800s and the mid-1900s, putting persons with disabilities on display for others to look at with fascination and ridicule were common with the freak shows that were an accepted part of American life.

Education policies. Despite the belief that persons with disabilities should be sterilized, institutionalized, or removed from public view, some policies promoted education and employment, mostly for persons with sensory disabilities. In regard to education, the majority of students with disabilities were systematically excluded from school until the 20th century, but there were notable exceptions. In 1817 the American School for the Deaf, the first school in the United States for students with disabilities, was founded in Hartford, Connecticut. In 1829 the Perkins School for the Blind in Watertown, Massachusetts, began to educate students who are blind, and in 1857 federal law created the first post-secondary institution for students with disabilities, the Columbia Institution for the Instruction of the Deaf and Dumb and the Blind (currently known as Gallaudet University), located in Washington, D.C. In 1896 Rhode Island opened the first public education classroom for students with disabilities.

Employment and social welfare policies. One of the more significant areas of legislation affecting people with disabilities was the creation and evolution of social welfare policies and public benefits programs that were designed to aid those in need in the U.S. population at large. Since the early years of the United States, aid to veterans and pensions for widows and disabled veterans have been offered following wars. After World War I, a system of hospital and medical care benefits was created for veterans, and workers’ compensation laws began in the majority of states by 1929. Retirement programs, mainly for state and local government employees and officials, have existed since the 1800s and did touch on the needs of persons with disabilities, in however limited a fashion. Charities and individual or family efforts to support people with disabilities also existed prior to the Great Depression but were hard to maintain given the economics of the times.

Social programs in the United States began in earnest with Theodore Roosevelt’s political philosophy called New Nationalism, which he unveiled in a speech in Kansas on August 31, 1910. One of the core elements of his platform was government protection of human welfare, and he argued that the federal government was the entity that could use its power to guarantee social justice. Roosevelt’s philosophy was maintained by his successors Woodrow Wilson and expanded by Franklin D. Roosevelt’s New Deal (1933–1936). The programs developed over this period successively helped provide education, health care, food, housing, and funding to Americans.

Some of these programs focused explicitly on employment for persons with disabilities. In 1918 the Smith-Sears Veterans Rehabilitation Act was passed, creating vocational rehabilitation programs for veterans with disabilities who had been discharged from the military. In 1935 the Social Security Act was passed, extending existing vocational rehabilitation programs and proving benefits for older individuals and funds to states to provide for children with disabilities and individuals who were blind. The Randolph–Sheppard Act was passed in 1936, creating employment opportunities for individuals who are blind and working on federal property. The Vocational Rehabilitation amendments to the Smith-Fess Act became law in 1943, followed by additional amendments in 1954 that expanded coverage and programs.

Social Security Disability Insurance (SSDI) was originally envisioned and developed in 1936 by the Social Security Administration. Its aim was to combat the unemployment effects of the Great Depression, and it clearly established guidelines for the receipt of funds based on one’s economic situation. Disability was defined here as “an impairment of mind or body which continuously renders it impossible for the disabled person to follow any substantial gainful occupation,” and was likely to last for “the rest of a person’s life.” However, owing to the Depression and World War II, SSDI insurance did not get significant congressional attention until 1949.

Debate on the issue then focused on whether the program should provide individuals with rehabilitation as opposed to a pension for life. The House of Representatives favored cash benefits while the Senate emphasized rehabilitation, resulting in a 1950 compromise by which “Aid to the Permanently and Totally Disabled” was added to the Social Security Administration’s existing programs. Prior to this time, the only aid had been to individuals who were blind. Whereas Social Security was a popular program in the early 1950s, Social Security Disability Insurance was controversial; the amendments to the Social Security Act establishing the Social Security Disability Insurance program were not signed into law until 1956, after additional compromises occurred, including allowing states to make initial disability determinations.

Conclusion. The laws and norms outlined above with respect to rehabilitation, education, and supports for persons with disabilities set the stage for the later-20th-century disability rights movements beginning in the 1960s and 1970s and legal developments including the Rehabilitation Act of 1973, the Education for all Handicapped Children Act of 1975, and the Individuals with Disabilities Education Act and the Americans with Disabilities Act of 1990, among others. Shifts in attitudes, expectations, and beliefs about the abilities and rights of persons with disabilities were critical in our societal evolution concerning disability. Although all perspectives still concurrently exist today, over time we have seen a shift from charity and a medical approach to one focused on the civil rights of persons with disabilities, with high expectations for community living, education, and employment and the removal of barriers in order to promote full inclusion, equity, and independent living for all.

Equality for People with Disabilities since the Mid-20th Century

By Molly Burgdorf

Over the past 60 years, the legal landscape in the United States has undergone a fundamental transformation with respect to the rights of people with disabilities, a shift toward independence and full participation and away from pervasive institutionalization and exclusion. This transition, including the emergence of the disability rights movement, is reflected in many ways, including the built environment (for example, curb cuts and ramps), the availability of accessible public transportation, changes in the public school classroom and the working world, and the increased visibility of people with disabilities in popular culture and in the community.

Action in the legal field prior to the mid-20th century, particularly federal legislation furthering equal rights for people with disabilities, is scant, although this era did include, for example, a 1948 law to assist veterans following World War II and an early version of the Vocational Rehabilitation Act. The 1960s saw the beginning of a movement toward inclusion and integration, which owes much to principles of the civil rights movement. The evolution of the law since that time would not have been possible without powerful organizing and activism by people with disabilities and their loved ones and advocates.

Education. The Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), confirmed the concept that every child deserves an education and that education “is a right which must be made available to all on equal terms.” Applying these principles in the case of two students with disabilities, a Utah court in Wolf v. State Legislature, Civ. No. 182646 (3d Judicial Dist. Ct., Salt Lake County, Utah, Jan. 8, 1969), found the exclusion of children with intellectual disabilities from public schools on that basis unconstitutional. In 1972, federal court decisions in both Pennsylvania and the District of Columbia helped establish the rights of children with disabilities to an appropriate education. Penn. Ass’n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), modified in 343 F. Supp. 279 (E.D. Pa. 1972) [outmoded terminology from the original citation]. Mills v. D.C. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972). These decisions were followed by a series of similar cases across the country.

Families and advocates raised issues based on due process and Equal Protection theories and challenged exclusion of children with disabilities from the public school system along with inappropriate programs that failed to adequately address the needs of these students. Court rulings began to reflect the changed perspective on the right of children with disabilities to an equal education.

In the decades that followed, federal statues, state laws, and court decisions shored up support for this guarantee of equal educational opportunity. The milestone 1975 Education for All Handicapped Children Act (the amended version is now known as the Individuals with Disabilities Education Act) included provisions that no children should be excluded from a free appropriate program of public education and related services, tailored to fit the needs of the individual student. The law allocated federal money to support state and local efforts to educate children with disabilities in compliance with the requirements of the law. Subsequent versions added a requirement that a state have procedures for identifying and evaluating all children with disabilities who reside in that state and added transition planning requirements to connect students with employment and community resources.

Integrated and inclusive schools are valuable for all students, making the classroom an environment where students with disabilities are just another element of a diverse group of peers and encountering people with functional differences is an expected part of everyday experience. Education can also serve as the essential conduit to empower people with disabilities to become productive citizens, increasing independence and self-determination.

Full participation. Cases addressing many other facets of the discrimination and injustice faced by people with disabilities in other contexts, including transportation, housing, and medical services, successfully challenged unequal treatment in court.

The Rehabilitation Act of 1973 included new provisions expanding opportunities for people with disabilities along with protections against discrimination as well as affirmative action mandates. Section 504 prohibited discrimination against any qualified person with a disability in any program or activity that receives federal financial assistance. This brief provision had great impact, particularly once what was then the Department of Health, Education, and Welfare issued regulations. Other key provisions include Section 501, creating an affirmative action requirement for people with disabilities in federal employment. Section 502 established the Architectural and Transportation Barriers Compliance Board (Access Board), which became the authority to establish minimum guidelines and requirements for federal accessibility standards. Section 503 extended the affirmative action obligations to federal government contractors.

Highlights of other laws prohibiting discrimination against people with disabilities and extending full and equal access to all include:

  • The 1968 Architectural Barriers Act, requiring federal government buildings to be usable by people with disabilities.
  • The 1975 Developmental Disabilities Assistance and Bill of Rights Act, which began from initiatives and federal statutes in the early 1960s to fund programs and facilities for people with developmental disabilities. Through years of reauthorizations, the law has grown to support systems change (i.e., efforts resulting in policies, practices, and organizational structures consistent with the goals of the Act), innovative research and training, and enforcement mechanisms to conduct investigations and protect and advocate for the rights of people with developmental disabilities and their families.
  • The 1980 Civil Rights of Institutionalized Persons Act (CRIPA), authorizing the investigation of conditions of confinement at state and local government institutions.
  • The 1984 Voting Accessibility for Elderly and the Handicapped Act, aimed to improve accessibility at polling places and in voter registration.
  • The 1986 Air Carrier Access Act, prohibiting discrimination against people with disabilities by all air carriers.
  • The Fair Housing Amendments Act of 1988, expanding enforcement mechanisms in Title VIII of the Civil Rights Act of 1968 to include people with disabilities as a new class to be protected from discrimination and requiring housing providers to make “reasonable accommodations” in rules, policies, practices, and services when needed to give a person with a disability an equal opportunity to use and enjoy public housing.

The American with Disabilities Act (ADA). In 1990 Congress enacted the ADA to establish a “clear and comprehensive prohibition of discrimination on the basis of disability.” Some key provisions:

Title I essentially prohibits employers from discriminating against a qualified individual with a disability because of his or her disability. An employer must provide a reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship (significant difficulty or expense) in light of factors including the nature and cost of the needed accommodation and the overall financial resources and size of the covered entity.

Title II prohibits discrimination by a “public entity,” which includes state and local government entities.

Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Public accommodations (for example, a theater, store, restaurant, doctor’s office, etc.) must make reasonable modifications to policies, practices, and procedures, unless such a change will “fundamentally alter” the nature of the goods, services, facilities, privileges, or accommodations at issue. The law also provides that architectural or communication barriers must be removed where this is “readily achievable,” that is, easily accomplishable and able to be carried out without much difficulty or expense. Title III also covers some transportation services and requires accessibility of new construction of public accommodations and of all newly built commercial facilities.

In the years following the enactment of the ADA, Supreme Court decisions interpreted the definition of disability in the law so narrowly that many people with disabilities were no longer protected from discrimination. In 2008 Congress enacted the Americans with Disabilities Act Amendments Act (ADAAA), clarifying that the definition of disability should be construed broadly so that an individual seeking protection under the ADA could more easily establish that he or she has a disability within the meaning of the law and move the focus to whether discrimination has occurred.

The Olmstead decision and enforcement. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court established that unjustified isolation is a form of discrimination under the ADA’s integration mandate. As the Court interpreted the law, public entities are required to provide community-based services to persons with disabilities when such services are appropriate, the affected persons do not oppose community-based treatment, and the placement in a community setting can be reasonably accommodated. More recently, the Department of Justice has begun to dismantle unnecessary segregation in sheltered workshops and facility-based day programs. Vigorous Olmstead enforcement ensures the opportunity for true integration, independence, choice, and self-determination for people with disabilities, including where they live, spend their days, work, or participate in their community. We know that the community as a whole benefits from the participation of all, maximizing the opportunities, options, and capabilities of every person.

Cases for consideration. To illustrate changes in the expectations regarding people with disabilities over the past decades, consider the cases of two young men with intellectual disabilities who went to court to enforce their rights.

Nicholas Romeo, a young man with an intellectual disability, was involuntarily committed to the Pennhurst State School and Hospital in 1974. A case brought on his behalf against officials in the institution argued that Romeo had the right to safe conditions, freedom from bodily restraint, and the right to appropriate treatment or “habilitation.” Even in the process of seeking to establish and enforce his rights, Romeo’s attorney conceded that his client would never be able to live and receive services outside an institution; that, as the court wrote, “no amount of training will make possible his release.” Youngberg v. Romeo, 457 U.S. 307, 317 (1982). However, within a year after the decision in his case, Romeo moved to a community residence, where he was able to successfully live, work, and receive services in the community.

Micah Fialka-Feldman, another young man with an intellectual disability, grew up fully included in school and in community life. He attended a college as part of a post-secondary transition program, paying tuition and carrying a full course load in the program. In 2007, after his application to live in the dorms had already been accepted, he was told he was not eligible for on-campus housing. Following extensive, unsuccessful negations with the school administration, he filed suit. In 2009 the judge found the school in violation of the Rehabilitation Act because the school had failed to conduct an “individualized analysis” of Fialka-Feldman’s reasonable accommodation request and instead had relied on “prejudice, stereotypes and/or unfounded fear.” Fialka-Feldman v. Oakland Univ. Bd. of Trs., Case No. 08-14922, 2009 U.S. Dist. LEXIS 119971 (E.D. Mich. December 23, 2009) (later vacated after the student successfully completed the program). Although discrimination is persistent, people with disabilities now benefit from additional opportunities and options as a result of changes to the law and the evolution of disability rights. Fialka-Feldman is one example of a young person with a disability who has grown up in a post-ADA world with the expectation of attending school, working, and participating on an equal basis with others.

Continuing challenges. As several federal laws proclaim, “Disability is a natural part of the human experience.” However, even with the veritable revolution described above, not enough has changed. Sixty years after the decision in Brown, the struggle for equality and access in the field of disability rights persists. Conditions vary by state, but there are still people with disabilities living against their wishes in institutional settings and languishing on waiting lists. We haven’t solved the problem of the need for adequate and appropriate services and supports. Striking inequities remain. For example, employment rates for people with disabilities remain abysmally low, well below the rates for people without disabilities in the workforce. Much has been accomplished to extend freedom and independence for people with disabilities and create higher expectations for people with disabilities and their families about the possibilities life holds, but there is still much work to be done.

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