Followup: Courts and the Civil Rights of the Disabled

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities.

Stigma: Notes on the Management of Spoiled Identity - Erving Goffman

The previous article,  In Retrospect: The Supreme Court and The Disabled, was about judicially interpreting away the protections of the Americans with Disabilities Act of 1990. It should be noted that the ADA is not a civil rights act. It refers only to barriers to the employability of people who can be productive members of society if reasonable accommodations are made in the workplace. The ADA does not even address such workplace civil rights matters as defamation of character or harassment. It says nothing about co-workers who attempt to degrade and intimidate employees who have, or are thought to have, a disability.

In this context, note a recent news item:

An Ohio man faces one month of jail time for teasing and taunting a 10-year-old girl with cerebral palsy after a video of the incident went viral.

On Nov. 27, Judge John A. Poulos of the Canton Municipal Court sentenced 43-year-old William Bailey to 29 days in jail. ...

William Bailey "was dragging his leg and patting his arm across his chest to pick his son Joseph up," said [Tricia] Knight. "I asked him to please stop doing this. 'My daughter can see you.' He then told his son to walk like the R-word." ...

The next day Knight posted the video on her Facebook page while [Knight's mother-in-law, Marie] Prince uploaded the video they called "Bus Stop Ignorance" to YouTube. Within days, the video went viral. ...

"I think when we look at cases, there's case law out there regarding people commenting and gesturing against race and religion. But when there's nothing out there regarding disabilities, it took me a little bit longer to come to a decision." ...

As for whether this case presents a new precedent in Ohio is another debate.

"I don't know if it sets a precedent so much maybe as it begins a conversation between people," said [Jennifer] Fitzsimmons [the chief assistant city prosecutor for this case]. "I think conversation starts progress, and I think if it can bring something else to light, it would be good."

Disabled people are a targeted minority. We call them retards, harelips, and spastics; and we abuse little people, those with Downs Syndrome, the developmentally disabled, bipolar people, and many others.

We have had a civil rights revolution, embodied in the Omnibus Civil Rights Act of 1964. But note what Prosecutor Fitzsimmons said about the treatment of a little girl with cerebral palsy just a day or two ago: There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. The Civil Rights Act has made such "commenting and gesturing" unacceptable when it applies to those we call minorities, that is, those of a different race or ethnicity.

However, we have a double standard concerning discrimination against the disabled. We treat them as having stigma. For example, note the following passage:

A drawn-out impeachment process is our worst option: another six months of Monica, have mercy; I don't care if it harelips the Governor.

This is from an article by the supposedly liberal columnist Molly Ivins, which appeared in the print edition of Time and has been on www.time.com for over a decade. It is obviously defamatory, and it seems to be clear evidence of a double standard. After all, would Time have printed it if the late Ms. Ivins had used the n-word rather than the h-word?

Above, we saw that William Bailey publicly humiliated a defenseless little girl, because she has cerebral palsy. He felt safe in doing so, with reason: This sort of thing happens all the time. After all, the nation's premiere news magazine defamed another group of disabled people, in print, and the nation has tacitly accepted this. It is as if, for the disabled, the civil rights revolution never happened.

How can this be? After all, justice–in this case, the freedom from marginalization and disenfranchisement–is, by definition, universal. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere."

Perhaps the reason is that our civil rights revolution apparently was not implemented, as King thought it would be, as justice–which is universal–but as protected class, which is obviously not universal. (King did not dream that his children would be in a protected class. He said I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.) We–even the infamous William Bailey–know that there are certain kinds of things you don't say about those we call "minorities." That sense–can we call it a sense of right and wrong?–obviously did not kick in where a little girl with cerebral palsy was concerned, and it did not kick in in the case of Molly Ivins' supposed earthy humor regarding a birth defect.

Protected Class and the Courts:
Would the court system of a liberal society, sidestepping universal justice, treat "protected class" as a term at law? One has only to read the news:

Publication: The Spokesman Review - Publish date: March 2, 1996
A state judge supports an earlier court ruling giving Spokane restaurants the right to refuse service to Hells Angels wearing their club insignia.
Spokane County Superior Court Judge Neal Rielly, in a written ruling released Friday, says members of the biker gang aren't a "protected class" under state or federal discrimination laws.

And more recently in Illinois:

Plaintiffs Gary Kohlman and Allen Roberts are members of the Hells Angels Motorcycle Club.*fn1 They contend that the Mayor of Midlothian (defendant Thomas Murawski), Midlothian's Police Chief (defendant Vince Schavone), and a Midlothian police officer (defendant Hal Kaufman) ordered restaurants and bars in Midlothian to refuse to serve the plaintiffs because of their membership in the Hells Angels Motorcycle Club and/or their wearing of Hells Angels insignia and logos. ...
Because no suspect class is at issue, the plaintiffs must allege that:
(1) they are members of a protected class; (2) who are otherwise similarly situated to members of an unprotected class; (3) who were treated differently from members of the unprotected class; (4) based on the defendants' discriminatory intent. 

In Plessy v. Ferguson, the first Justice Harlan wrote:

Our Constitution is color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Yet we have among us people we see every day, who are members of a targeted minority, but are not, as Prosecutor Fitzsimmons' comment reveals, in a protected class (there do not seem to be civil rights cases regarding them). That should not make a difference in how we treat the disabled. But it does: The most horrifying aspect of Molly Ivins' offhand remark is that everybody understands it. If it was possible to "harelip" the governor, it is understood that person would be outside the protections and considerations we afford those of "normal" identity.