Thursday, July 30, 2015

Disability Constitutional Law

By Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

Both the ADA and the Americans with Disabilities Amendments Act (passed in 2008) passed with remarkable bipartisan support. Disability has never entered the culture wars, and in many ways disability rights have transcended traditional political commitments. But while legislative political elites in both parties have been very comfortable taking pro-disability rights positions, the public at large is less aware of and sometimes hostile to the ideals and goals of the disability rights movements. Everyone likes and identifies with a feel good story about athletes who “overcome” disability. But how many business owners have welcomed the idea of making physical or programmatic changes to accommodate difference?

Although the ADA has a constitutional basis, it is primarily celebrated as a legislative success. Lawyers and advocates who bring disability law cases are reluctant to engage constitutional law as a source of relief for people with disabilities. And they have good reasons to be wary. The ADA offers ample protections, moving deep into the private sphere in a way constitutional law could not. And the doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Lawyers in the disability rights movement know how to count to five and have reasoned that the Supreme Court is an inhospitable place for equality claims generally.

At this important milestone in the disability rights movement, I want to suggest that the next 25 years should include more of an engagement with disability constitutional law. I take this position for several reasons. First, there is a lot that is unclear, and potentially up for grabs, about equality law. Cases like Windsor and Obergefell do not fit neatly into conventional tiered Equal Protection Clause analysis, instead looking at some mix of the nature of the interest protected and the legislative classification. Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.

Second, even in the shadow of Cleburne, I believe there are winnable disability constitutional claims. This may not occur under the federal Constitution, at least not at first. But several state constitutions either explicitly or through judicial interpretations offer some form of heightened scrutiny for classifications drawn on the basis of disability. And there are still many areas of state regulation – including family law and voting – that facially, unnecessarily, and unjustly discriminate on the basis of disability: laws that deny reunification services to parents with disabilities, restrict marriage for individuals with intellectual disabilities, or say that “idiots” cannot vote. Taking the long view, advocates should pick their spots and challenge restrictions like these under state constitutions, working their way over time back to federal court. One of the constitutional lessons of the last 20 years is that state courts can be the laboratories for constitutional innovations that can work their way into federal understandings.

Finally, this should happen because Cleburne was and remains wrong. It trivializes the history of discrimination against people with disabilities and assumes that all legislation directed at disability classifications must come from a benign and helpful place. It no longer comports with modern notions of disability independence, choice, and freedom from paternalism. If constitutional law reflects our highest aspirations of who we are as a people, Cleburne, both as written and interpreted over time, is not up to the task.

So yes, the ADA absolutely should be celebrated as a precious tool to make people with disabilities full citizens. But like all tools, it is not the only one in the box. The 25-year plan for disability rights should include movement organizing and legal strategy to change and expand notions of disability constitutional law.

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