Disability Rights are Civil Rights
Updated: Jun 14, 2020
I. The disability rights movement was founded upon the lessons of the civil rights movement.
In 1954, a landmark Supreme Court case, Brown v. Board of Education of Topeka, led to a unanimous ruling by the Justices that racial segregation of children in public schools was in violation of the 14th Amendment and unconstitutional. At long last, the doctrine of "separate but equal" was held to be unequal, and therefore, unjust. It was this new "separate is inherently unequal" doctrine, along with other lessons of the civil rights movement related to strategic litigation, organizing, and civil disobedience, which led to landmark disability-based litigation and legislation immediately following the civil rights era.
However, many states continued to resist racial desegregation orders by the Court and in Brown v. Board of Education II, in 1955, the Supreme Court admonished the states to integrate their schools "with all deliberate speed." For African American students of that era (and arguably still), an equal education delayed amounted to an equal education denied. These types of strategically chosen cases along with historic federal legislation, the Civil Rights Act of 1964, laid the legal and societal groundwork for recognizing that students with disabilities were both deserving of and in need of similar protections.
II. Adovcates and parents helped usher in the Individuals with Disabilities Education Act (IDEA)
Similar to the litigation aimed at ending desegregation in public schools, of the 1950's and 1960's, advocates and parents joined with activists to selectively bring lawsuits in cases with favorable plaintiffs and courts. In fact, until the early 1970's, students with significant disabilities were often denied enrollment and participation in public schools. Often, these students were placed in institutions with substandard educational programs. Two cases, in particular, were instrumental in shaping the legal system's understanding of how disability-based segregation constituted separate and unequal educational outcomes for students with disabilities.
First, in 1972, the notion that children with disabilities were "uneducable" or "untrainable" was challenged in P.A.R.C. v. Pennsylvania. The class action lawsuit on behalf of 14 children with disabilities argued that under Brown, their rights were violated under the equal protection and due process clause of the 14th Amendment. The case led to a consent agreement which included carefully chosen wording and a framework of rights that would eventually be incorporated into the Individuals with Disabilities Education Act (IDEA). In P.A.R.C., the state's obligation to place a student with a disability in a "free, public program of education and training appropriate to the child’s capacity” was articulated by the court for the first time. This legal right and concept became known as a free and appropriate public education (FAPE) under the IDEA.
Second, in 1972, Mills v. Board of Education of the District of Columbia expanded the ruling of P.A.R.C. beyond children with developmental disabilities to prohibit children with behavioral and emotional disabilities from being denied placement in a public education. In Mills, the court also ruled the school district''s defense they lacked sufficient funding was not a sufficient basis to deny a public education to students with disabilities. As more federal courts followed the precedent of P.A.R.C. and Mills, Congress eventually enacted the Education for all Handicapped Children Act in 1975, which is now the Individuals with Disabilities Education Act (IDEA).
For the first time, the IDEA conferred meaningful procedural and substantive protections for students with disabilities, along with affirmative obligations for the states and school districts to identify students with disabilities and, if found eligible, to create an individualized education plan (IEP), with parent input and participation, that is implemented in the least restrictive environment (LRE). The LRE requirement meant students with disabilities were to be educated in the general education classroom with their nondisabled peers, to the maximum extent appropriate.
III. The disability rights movement advocated for the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1972
During the 1970's, parents of disabled children once again joined forces with advocates and activists to persuade Congress to enact watershed federal laws that would provide access to public places and protections against disability-based discrimination. As with the preceding special education litigation, the federal disability statues and regulations followed the path already trailblazed by the Civil Rights Act of 1964.
On April 5, 1977, activists staged demonstrations around the country at the regional offices of the federal Department of Health, Education, and Welfare (HEW). In San Francisco, the protesters marched into the local HEW office and remained there for nearly four weeks. This collective act of civil disobedience became known as the "504 Sit-In" and remains the longest nonviolent occupation of a U.S. federal building in history. Eventually, the Carter Administration signed Section 504 of The Rehabilitation Act of 1973, which mandated the integration of disabled people into mainstream institutions.
Under Section 504, nondiscrimination became a legal, fundamental right. Section 504 led to noticeable and tangible changes in public accommodations in university classrooms and workplaces, and in public places such as libraries, courtrooms, and public transit. Cities created curb cuts to improve accessibility and mobility from the street to the sidewalk . Federal buildings became more accessible by installing ramps and wider restroom stalls. The regulations established by Section 504 ushered in a new era of accessibility leading eventually to the passage of the Americans With Disabilities Act in 1990.
Like their predecessors, the battle for the Americans With Disabilities Act (ADA) was hard fought and hard won by disability activists and advocates. On March 12, 1990, physically disabled children and adults held a "Capitol crawl." To symbolize the barriers confronting disabled people, more than 60 activists left behind their crutches, wheelchairs, powerchairs, and other mobility-assistance devices and began crawling up the 83 stone steps that lead to the Capitol. Four months later, Congress passed the the ADA and it was signed into law by President Bush on July 26, 1990.
Remarkably, the ADA not only prohibits disability-based discrimination, but also requires covered employers to provide reasonable accommodations to employees with disabilities, imposes accessibility requirements on public accommodations, and expands protections against disability-based discrimination under the Fair Housing Act. A 2015 survey found that more than two-thirds of individuals with disabilities believe the ADA was " the most significant social, cultural or legislative influence on their lives in the past 25 years."
Epilogue: Disability rights are recognized as a fundamental human right.
It should be noted that the United Nations has taken matters a step further by formally recognizing that disability rights are encompassed by human rights. The Convention on the Rights of Persons with Disabilities (CRPD) is an international treaty that became effective on May 3, 2008. Over one hundred and sixty countries have signed and ratified the treaty. Although the United States is a signatory to the treaty, the Senate has not voted to ratify the treaty yet.
Still, the CRPD is a powerful tool to "promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity." Incrementally, it seems, the moral arc of the universe is being bent more and more towards justice, but it's still important to honor and remember those who came before us and helped to bring us this far. Along with racial justice, access delayed is access denied.
As the preamble to the Convention on the Rights of Persons with Disabilities urges, we must continue to strive towards "recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms."
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