December 15, 2017

Irrational Views of the Disabled under Law: Stigmas, Bias, and Prejudice


Photo by Leslie Feinberg, Creative Commons


By Sean Pevsner, J.D. / 07.21.2017
Brewminate Legal Analyst


“Sen. Warren was giving a lengthy speech. She had appeared to violate the rule. She was warned. She was given an explanation. Nevertheless, she persisted.”

Senate Majority Leader Mitch McConnell issued the above statement to justify prohibiting Senator Elizabeth Warren from reading a letter outlining the apparent prejudiced and biased views of Senator Jefferson Beauregard Sessions and her opposition to his nomination for Attorney General.  Written in 1986 by Coretta Scott King, the wife of civil rights leader Martin Luther King, Jr., this letter was originally penned in opposition to Sessions’ previous nomination to a lifetime appointment to the US District Court. This nomination was defeated; however, in 2017, the Senate confirmed Sessions as the Attorney General.  Even though Senator McConnell prevented Senator Warren from reading the King letter on the Senate floor, she nevertheless persisted and was recorded reading the letter outside the Senate chamber.  This video went viral on social media, exposing the irrational views of the Republican majority in Washington, DC.[1]  Irrational views are at the forefront in our federal government, with a person who used these views in his own presidential campaign now sitting in the oval office.  Trump  cast aspersions against Muslims, African Americans, Hispanics, and women; he even went as far as making several offensive gestures while mocking a New York Times reporter with a disability.[2]  Depsite this, he still won the presidency in an election that set a new low for common decency.  With Trump as president, it is more important than ever that people with disabilities persist in the face of public ridicule and political repression.

People with disabilities face irrational views in society.  The three main causes for these views are stigma, bias and prejudice. The stigmas faced by people with disabilities include the misconception that they cannot contribute to the community as productive citizens. Some people believe that individuals with disabilities cannot care for themselves.  Therefore, according to this paternalistic approach, society must establish institutions to take care of these individuals, which tends to isolate individuals with disabilities. These individuals also face biases, such as the belief that the disability population takes too much of society’s resources.   People with disabilities often need services to become productive citizens, such as attendant care, reasonable accommodations and modifications.  Some far-right conservative citizens believe that the government should neither provide these services nor mandate that private entities do the same. A city may not want people with disabilities to live in its community because the city fears that people with disabilities will harm others.  This type of irrational view is based on prejudice.  As you will read later in this article, one city attempted to exclude individuals with intellectual disabilities based on its irrational views that these individuals posed a threat to its citizens.  This prejudiced approach causes animus toward people with disabilities.

Before I share the impact that these irrational views had on my life, I will discuss the main Supreme Court case that addressed these views of people with disabilities.  This discussion will provide some context into how the American legal system views the disability community.

Cleburne Living Center

Prejudice and stigma were noted in the 1985 Supreme Court (the “Court”) case City of Cleburne v. Cleburne Living Centers, Inc. The Court ruled that the City of Cleburne’s ordinance requiring a group home for individuals with intellectual disabilities apply for a special permit was unconstitutional.  This special permit covered “[h]ospitals for the insane or feeble-minded.”  The City of Cleburne (“Cleburne”) classified Cleburne Living Centers, Inc. (the “Center”) as a hospital for the “feeble-minded.” Cleburne officials held a hearing to consider the Center’s permit.  Cleburne denied the permit, citing primarily the safety of its citizens and the residents of the group home. Cleburne believed that these residents were incapable of living in society.  The Center sought legal relief from the federal courts.  The lower courts applied different standards of protection for the residents of the Center in this case in different ways.  

The Center filed a federal lawsuit against Cleburne arguing that the city ordinance was unconstitutional under the Equal Protection Clause of the 14th Amendment to the Constitution.  The district court noted that “’[i]f the potential residents of the Featherston Street home were not [intellectually disabled] but the home was the same in all other respects, its use would be permitted under the city’s zoning ordinance,” and that the City Council’s decision “was motivated primarily by the fact that the residents of the home would be persons who are [intellectually disabled].’” However, the district court ruled that the Cleburne ordinance was constitutional under the traditional minimum rational basis test established by the Court in Schweiker v. Wilson in 1981. Under this test, if a governmental entity could demonstrate that a particular law was rationally related to a legitimate interest of the entity, then a court must rule it constitutional.  Under this test, nearly all laws would pass constitutional muster, as courts would not probe the intent of elected officials who enacted them.  Consequently, the district court found that the Cleburne ordinance had a rational relation to the municipal government’s legitimate interest to keep its citizens safe.   

The Center appealed this ruling to the US Court of Appeals for the Fifth Circuit (the “Fifth Circuit”).  The Fifth Circuit reversed the lower court’s holding and ruled that the Cleburne ordinance was unconstitutional under the Equal Protection Clause of the 14th Amendment to the Constitution.  In its holding, the circuit court applied the heightened scrutiny test, which the Court established for a quasi-suspect class in Frontiero v. Richardson in 1973.  Courts usually apply this test to determine if laws are discriminatory on the basis of gender.  Under this test, a governmental entity must demonstrate that a particular law is substantially related to a sufficiently important interest to the entity.  Laws almost always fail to pass constitutional muster under the heightened scrutiny test, as courts will usually probe the intent of the elected officials who passed the law in question.  The Fifth Circuit found that the Cleburne ordinance was not substantially related to a sufficiently important interest to Cleburne.  The circuit court probed the intent and beliefs of the Cleburne officials and found that the irrational views of the officials, that individuals with intellectual disabilities posed a threat to other Cleburne citizens, unconstitutionally discriminated against the residents of the Center.    

Cleburne appealed the Fifth Circuit’s ruling to the Supreme Court.  In the majority opinion written by Justice Bryon White, the Court agreed with the Fifth Circuit that Cleburne unconstitutionally discriminated against the residents with intellectual disabilities in the Center.  Justice White stated that “[t]he short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the [intellectually disabled] including those who would occupy the Featherston facility.”  However, the majority reversed the part of the decision classifying these individuals, and by extension all people with disabilities, as a quasi-suspect class entitled to heightened scrutiny.  Justice White believed that the minimum rational basis test gave lawmakers latitude to craft appropriate legislation for individuals with intellectual disabilities.  

Justice Byron White, Public Domain

Justice White stated that,

“[t]he equal protection standard requiring that legislation be rationally related to a legitimate governmental purpose affords government the latitude necessary…to pursue policies designed to assist the [intellectually disabled] in realizing their full potential.”  

He indicated that the treatment of people with intellectual disabilities “under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Despite going to great lengths in establishing that people with intellectual disabilities should not receive heightened scrutiny, the majority engaged in probing methods of the Cleburne officials to determine if the ordinance was unconstitutional as it would with a gender discrimination case.  

Justice Thurgood Marshall, joined by Justices William J. Brennan and Harry Blackmun, wrote a partial dissent arguing that the Court should classify people with intellectual disabilities as quasi-suspect class.   Justice Marshall pointed out that “under the traditional standard we do not sift through the record to determine whether policy decisions are squarely supported by a firm factual foundation.” Marshall argued that the Court would not have probed into the intent of the Cleburne officials’ enactment of the ordinance if they had followed the true principles of the traditional minimum rational basis test.  Thus, with no probing of policy decisions, the Cleburne ordinance would have passed constitutional muster under this test.  Justice Marshall argued that that the Court should classify people with intellectual disabilities as a quasi-suspect class to give future justices of the Court a clear standard to use to prevent other governmental entities from invidiously discriminating against these individuals.  

Justice Marshall addressed the majority’s argument that the heightened scrutiny test would restrict governmental entities from crafting legislation to help people with intellectual disabilities.  Marshall stated that,

“[h]eightened scrutiny does not allow courts to second-guess reasoned legislative or professional judgments tailored to the unique needs of a group like the [intellectually disabled], but it does seek to assure that the hostility or thoughtlessness with which there is reason to be concerned has not carried the day.”

Marshall had the foresight to know that other entities would invidiously discriminate against people with disabilities.  He also knew that without a clear standard of review, courts would not adequately protect these individuals from such discrimination as Cleburne committed against the residents of the Center.  

Before the Cleburne case, the most famous Court case involving the Equal Protection rights of individuals with intellectual disabilities was Buck v. Bell in 1927.  Chief Justice Oliver Wendell Holmes delivered the majority opinion that ruled that a Virginia State law mandating the sterilization of institutionalized individuals with intellectual disabilities was constitutional.  Holmes used the true minimum rational basis test to determine that the Virginia law was constitutional.  He stated that,

“[i]t would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.”

Holmes believed that the State of Virginia had a rational basis for the compulsory sterilization of  individuals with intellectual disabilities—to save society from having to deal with more of these “incompetents.”  He stated that “society can prevent those who are manifestly unfit from continuing their kind.” Holmes explicitly endorsed government sanctioned eugenics by stating that “[t]hree generations of imbeciles are enough.” The Cleburne officials had a more rational basis for only denying a housing permit to the Center to keep its citizens safe than Virginia did for involuntarily sterilizing individuals with intellectual disabilities in an attempt to eliminate their future existence.

Wikimedia Commons

Congress passed the Americans with Disabilities Act (“ADA”) in part to provide more legal protection than the Cleburne majority gave to people with disabilities. The ADA prohibited both governmental and private entities from discriminating against people with disabilities in employment, education, public services and accommodations. However, the Court and lower courts have limited the ADA’s protections.     

Justice Marshall’s concerns regarding invidious discrimination became a reality when the University of Alabama demoted Patricia Garrett, a nurse with cancer, because she took a significant number of days off work to receive chemotherapy.  Garrett sued Alabama for monetary damages under Title I of the ADA.  The Court ruled in Garrett v. Alabama (2001) that the State of Alabama had a rational basis for demoting Ms. Garrett. The majority opinion stated that Alabama’s interest in saving the state money was rationally related to a legitimate state government interest under the Eleventh Amendment to the Constitution. The majority did not apply the same probing test which it used in Cleburne. Instead, it applied the true traditional minimum rational standard test which allows governmental entities to use almost any excuse to convince a court that a law or government action is constitutional. The Garrett majority even acknowledged that Alabama “could quite hard-headedly—and perhaps hardheartedly—hold to job qualifications requirements which do not make allowances for the disabled.”  Thus, the majority essentially admitted that Alabama violated the civil rights of Ms. Garrett, but the majority believed that this state governmental entity had a legitimate interest to do so. If the Court had used heightened scrutiny, Alabama’s action would not have passed constitutional muster. It is therefore vital that courts consider the human consequences of using lower standards when deciding civil rights cases. When governmental entities are allowed to base their policies on irrational views, real people suffer.  Governmental entities are creating civil and human rights problems for me as a person with a severe physical disability as well as for the disability community at large.  

One prime example of a governmental entity using the Cleburne majority decision to discriminate irrationally against me is that the Texas Workforce Commission (“TWC”) is attempting to compel me to pay unemployment insurance for the wages I pay to my personal care assistants.  I challenged this TWC action under the Equal Protection Clause in the 14th Amendment of the US Constitution and Title II of the ADA.  TWC gave me an administrative hearing.  

My law partner represented me in the administrative hearing.  n his closing briefs, he argued that the TWC discriminated against me by compelling me to pay taxes on the pay I give to my personal care assistants who assist me to survive.  Without assistants, I would not be able to survive outside an institutional setting.  People without disabilities are not compelled by the State of Texas to pay taxes merely to survive.  

In their decision, the TWC commissioners concluded that ‘’the state has a compelling interest in protecting the fund, and that that interest outweighs Mr. Pevsner’s discrimination claims.” The commissioners cited the Cleburne majority decision for concluding that “[t]he Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike.”  As discussed above, the Cleburne majority decision purported to use the traditional minimum rational basis scrutiny.  The Cleburne Court did not establish the compelling interest standard, in either the majority or partial dissent decisions, for determining if a governmental action unconstitutionally discriminates against people with disabilities.  The TWC acknowledged that the unemployment taxes are essentially taxing me to live.  Even though the commissioners ruled that the State of Texas has a compelling interest (strict scrutiny standard) to impose unemployment taxes on me for the pay for my personal care assistants, they really used the traditional minimum rational basis scrutiny which only requires a governmental entity to show its actions were rationally related to a legitimate interest.  If the TWC commissioners had actually applied strict scrutiny, they would probably have ruled the collection of unemployment taxes as applied to me as unconstitutional under the Equal Protection Clause of the 14th Amendment to the Constitution.  The government can never have a compelling reason to tax Americans merely to survive.  If the TWC commissioners used the heightened scrutiny standard in Justice Thurgood Marshall’s partial dissent in Cleburne, the TWC unemployment tax collection action would not pass constitutional muster, as that action is not substantially related to a sufficiently important interest to the State of Texas.  Once again, the Cleburne majority decision allowed a governmental entity to violate the human and constitutional rights of people with disabilities who need personal care assistants by failing to give a clear standard of judicial scrutiny for determining if governmental actions unconstitutionally discriminate against individuals with disabilities.   

The Republican majority in Congress is currently proposing a tax bill that would eliminate tax breaks for durable medical equipment.  Durable medical equipment includes wheelchairs, shower chairs and communication devices.  Under current law, people with disabilities can take advantage of tax breaks when purchasing such equipment.  However, the Republican majority is attempting to eliminate these breaks to give tax cuts to the wealthy.[3]  Moreover, this tax bill will eliminate tax incentives for businesses to comply with the ADA.[4]  This irrational view by the Republicans would create burdens for people with disabilities to survive.  Like the State of Texas attempting to impose unemployment taxes on me for employing personal care assistants in order to survive, Congress is trying to impose taxes on equipment vital to the disability community to live in society.  

Irrational views are rooted in every bigoted and prejudicial attitude which affects people of different races, genders, sexual orientations and religions.  A disability can occur in any of these classes.  Yet, the courts only give people with disabilities the bare minimum protection from government discrimination.  We must be ever vigilant in protecting our rights. As Wendell Philips, an attorney and abolitionist in the 19th Century said, “[e]ternal vigilance is the price of liberty.”

Notes

  1. https://www.washingtonpost.com/news/the-fix/wp/2017/02/08/nevertheless-she-persisted-becomes-new-battle-cry-after-mcconnell-silences-elizabeth-warren/?utm_term=.ccb10aa00054
  2. https://www.washingtonpost.com/news/the-fix/wp/2017/01/09/meryl-streep-was-right-donald-trump-did-mock-a-disabled-reporter/?utm_term=.8a3c4897a3b0
  3. https://www.thedailybeast.com/the-gops-tax-bill-is-a-war-on-disabled-people, http://thehill.com/opinion/healthcare/360801-the-gop-tax-bill-will-be-a-health-care-financial-burden-on-american, https://www.brookings.edu/blog/up-front/2017/11/03/9-things-to-know-about-the-house-gop-tax-plan/
  4. Id

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