Disability and The Constitution

September 10, 2018 | Nathan Altman, 2018 AAPD Summer Intern

Trigger warning: eugenics, forced sterilization

The traditional legal options for pursuing disability discrimination cases have largely been limited to strategies that rely on legislation like the ADA, IDEA, The Fair Housing Act, and the like. While these pieces of legislation provide useful means for creating more accessible workplaces, schools and housing, this strategy does not adequately prevent state discrimination in all areas of American life. There remain many state laws that continue to facially discriminate against people with disabilities, limiting rights for voting, marriage, family relations, and other vital areas of personal autonomy. The solution in one view is to litigate these issues with state constitutions and federal laws like the ADA. However, this is not a holistic approach to the problems of discrimination. In fact, this strategy enables significant vulnerabilities to exist that allow the violation of the rights of people with disabilities.

Among the vulnerabilities concerning civil rights protections for people with disabilities is the lack of adequate protection under the federal Constitution. The federal Constitution provides significant means for pro-disability federal legislation to be produced, among them the Spending Clause and Commerce Clause, but disability discrimination protections afforded by the 14th Amendment’s Equal Protection Clause are dramatically inadequate as currently interpreted, especially when compared to protections afforded to other protected groups. Of the three levels of scrutiny applied to discrimination protections for protected classes under the 14th Amendment, disability receives the weakest level of protection; dead last behind heightened protections for race and gender discrimination protections. This is because disability Constitutional law is largely viewed as settled law, with the most significant precedent being City of Cleburne v. Cleburne Living Center, Inc., where the court ruled that, because disability-specific needs may be addressed through varying government services, a more stringent level of protection under the 14th Amendment could threaten intervening government services and charity. But the rights of people with disabilities are not charity and should not be left to a charitable government to decide whether or not to afford us. The court in Cleburne also failed to properly address the history of discrimination people with disabilities have faced, ignoring the fact that relying on the constantly changing legislature for federal protections leaves people with disabilities vulnerable to constantly changing attitudes in federal and state governments that may violate their rights. To withstand these changing attitudes, the disability community needs strong, long-lasting Constitutional protection.

The lack of proper Constitutional protections for people with disabilities has kept open the door for states to continue to make laws that plainly and openly discriminate against people with disabilities, especially mental disabilities. In the area of institutional commitment and family relations, people with disabilities are regularly discriminated against in such a way that would likely not be permitted if there was a greater degree of Constitutional protection. Legal decisions regarding these cases continue to cite Cleburne to claim that disability isn’t a protected class, enabling the court to use the weakest legal test that is standard in Constitutional disability discrimination cases. This test minimizes the rights of the disabled individual to give the maximum degree of power to the state, so long as the court finds the government’s reasoning “rational.” People with disabilities do not need to be reminded of the discrimination we’ve faced from people who claim “rational” intentions: “it isn’t rational to install a ramp for my business because folks using wheelchairs don’t shop here,” (why could that be?) or “it isn’t rational to pay people with disabilities an equal wage because no one would hire them,” or, as the Supreme Court ruled less than a century ago, forcibly sterilizing people with disabilities was rational because, in the Court’s words, “three generations of imbeciles are enough.”

Today there might not be a straightforward path to a more just degree of protection under the 14th Amendment. I don’t claim to have that answer here. But moving forward starts with making sure people with disabilities and our allies are aware of these problems related to our Constitution. As we continue to raise and empower generations of people with disabilities, we can’t forget to include this message in our discussions and movements towards equality: we are Americans and this is our Constitution too. We deserve our proper place in it.


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Nathan Altmann is a 2018 AAPD Summer Intern. He interned in the Office of Senator Chuck Schumer (D-NY).

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