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CLE examines history of disability perceptions, protections

Dan Heilman//May 18, 2023

Image of wheelchairs in the background with a judge's gavel and block prominent in the foreground image

CLE examines history of disability perceptions, protections

Dan Heilman//May 18, 2023

For many of us, the Jerry Lewis MDA Labor Day Telethon was an annual tradition that was benign, or maybe even inspiring. People with disabilities saw it another way.

“The sales methods they used were based on pity,” said attorney Chad Wilson, who has a form of muscular dystrophy. “Lewis called wheelchairs steel prisons. I understood then that we don’t want pity.”

The tone of the telethon was but one example of how people with disabilities have been misunderstood and mistreated for much of United States history. That dynamic was part of a recent CLE presented by the Minnesota Attorney General’s Office.

“Disability Awareness, Rights, and Justice” took a historical and regulatory look at how people with disabilities are regarded and accommodated. The program looked at the history of the disability community, the Americans with Disability Act (ADA), state policy and tips and resources for engaging with the disability community in government work and in the judicial system.

The history of how people with disabilities have been treated in the United States is not pretty. Methods of eugenics used on people with disabilities, including forced sterilization, were on state law books barely a century ago.

A 1927 United States Supreme Court decision in Buck v. Bell legitimized Virginia’s sterilization procedures until they were repealed in 1974. “Three generations of imbeciles are enough,” was one comment from the court’s opinion.

“Counsel during the Nuremburg trials cited this decision to defend their methods,” said Wilson, an assistant supervising attorney with the Minnesota Disability Law Center. “Buck has been chipped away at, but never completely overturned.”

Another milestone in laws around disabilities took place in 1990: the “Capitol Crawl,” a protest in which people with disabilities crawled up the U.S. Capitol steps demanding passage of the ADA, which happened four months later.

“Those stairs stood for the inaccessibility of society,” said Wilson.

As it stands, the ADA has five main principles, the most well known of which are Title II and Title III.

Title II of the ADA requires state and local governments to give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities.

“If I’m going to court and I’m in a wheelchair, can I get up the stairs?” asked Justin Page, also an assistant supervising attorney with the Minnesota Disability Law Center. “Are the sidewalks in repair? If I’m deaf, can I get access to an interpreter? Agencies are tasked with removing those barriers. That’s why agencies have ADA coordinators.”

Title III prohibits discrimination based on disability in places of public accommodation. That’s where things can get tricky, because mandated accommodations can affect commerce.

“The main difference is in the phrase ‘readily achievable,’” said David Fenley, ADA director for the Minnesota Council on Disability. “Title III entities aren’t as required to be as accessible. They can avoid those things if it costs too much. If a mom-and-pop flower shop has two levels, and an elevator will cost $150,000, the point of the ADA is not to put them out of business.”

At the same time, though, a business like that would be expected to provide an accommodation that’s readily achievable, such as photos of what’s available on the second level. Businesses have a responsibility to determine if something is readily achievable. But it’s bad form for business owners to boast about accommodating people with disabilities.

“Businesses say they’re ADA-compliant with a tone of pride, even though they’re just following the law,” said Fenley. “Without realizing it, they’re telling me that I need to be happy with the bare minimum.”

Perceptions of disabilities are often defined by the differences between what are commonly called the medical model and the social model. The medical model of disability says that illness or disability is the result of a physical condition and is intrinsic to the individual and may reduce the individual’s quality of life.

The social model, on the other hand, views disability as stemming from communities, services and spaces that are not accessible or inclusive. In the social model of disability, it is society that places limits on a person, not their disability.

“Systems are designed for a majority, and that’s where the social model fits in,” said Fenley. “Not everyone fits into those spaces. Cultural barriers are as important as physical barriers.”

All three panelists pointed to the importance of language in how people with disabilities are perceived and addressed. The primary contrast is between people-first language (e.g., a person with a disability) versus identity-first language (disabled person).

“Disability is a secondary aspect,” said Wilson. “People-first separates the person from the disability in defining their worth. If you’re not sure, use people-first language.”

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