Beyond Disability Civil Rights
About 10% of the world’s population, some six hundred million people, has a disability. Disabled persons nevertheless account for 20% of the world’s poorest individuals, a phenomenon that exists across developing and developed countries. These impoverished conditions persist despite efforts by American and international disability rights advocates to ensure the equality of people with disabilities, as evidenced by the growing number of countries that have enacted disability-related legislation. Unfortunately, the continuing economic inequities and social exclusion of disabled persons worldwide severely calls into doubt the efficacy of these efforts. It also begs the question of whether any country adequately protects its disabled citizens.
Historically, disability rights advocates have used the social model of disability to fight for equal treatment. At the forefront of this endeavor, American advocates expressed the social model of disability through a civil rights prism whose tenets paralleled earlier advocacy on behalf of people of color and women. Their most significant result was the 1990 promulgation of the Americans with Disabilities Act (“ADA”), prohibiting disability-based discrimination. As an exemplar of the social model, the ADA has played a leading role in developing disability law outside the United States, with more than forty countries adopting formulations of the statute. Yet despite its laudable achievements, the ADA contains design and implementation shortcomings. The legislation is unable to adequately protect Americans with disabilities in many aspects of their lives. Even ADA proponents admit that the statute has not engendered noteworthy improvements in the employment sphere. Consequently, people with disabilities remain socially marginalized and mired in poverty. Perhaps most trenchantly, as a practical matter, disabled Americans continue to be excluded from the fundamental right of voting. In sum, despite many positive affects American disability civil rights legislation has not—and structurally cannot—bring about equality on their own.
Furthermore, the exclusive focus of American disability rights advocates on the civil rights aspect of disability law and policy is ultimately counter-productive. The efficacy of any law depends on considerations beyond its mere existence. This is especially true for civil rights laws seeking to prevent discrimination against a targeted group; legislation needs to transform society’s institutional structures and attitudes towards marginalized individuals if they are to be treated equally. Because the ADA does not account for exogenous affects, the civil and political rights of disabled Americans, including those contained in the ADA, are far from protected.
Nevertheless, American legal scholarship on disability law and
policy remains almost exclusively grounded in traditional civil rights discourse. Establishing disability’s role within the larger canon of antidiscrimination law is a commendable form of advocacy. American courts and legal commentators continue to resist the notion that the ADA is the same in kind as more traditional civil right legislation, notably Title VII of the Civil Rights Act of 1964 (Title VII).