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.

In Retrospect: The Supreme Court and The Disabled

In 2008, the year of Obama's first presidential election, the American Congress took action to remind the Supreme Court of the intent of existing disability employment law. Under the headline, Congress Passes Bill With Protections for Disabled, the New York Times wrote:

The bill expands the definition of disability and makes it easier for workers to prove discrimination. It explicitly rejects the strict standards used by the Supreme Court to determine who is disabled.

The bill declares that the court went wrong by “eliminating protection for many individuals whom Congress intended to protect” under the 1990 law.

“The Supreme Court misconstrued our intent,” said Representative Steny H. Hoyer of Maryland, the House Democratic leader. “Our intent was to be inclusive.”

In an effort to clarify the intent of Congress, the bill says, “The definition of disability in this act shall be construed in favor of broad coverage.”

Representative F. James Sensenbrenner Jr. of Wisconsin, the principal Republican sponsor in the House, said, “Courts have focused too heavily on whether individuals are covered by the law, rather than on whether discrimination occurred.” ...

“This is one of the most important pieces of civil rights legislation of our time,” said Representative Jim Langevin, Democrat of Rhode Island, who uses a wheelchair.
Lawrence Z. Lorber, a labor law specialist who represents employers, said the bill would change the outcome of “a slew of cases that were thrown out of court in the past.” Now, he said, “employees who have cancer or diabetes or learning disabilities will get their day in court and are more likely to get accommodations from employers.”

Lawmakers said that people with epilepsy, diabetes, cancer, multiple sclerosis and other ailments had been improperly denied protection because their conditions could be controlled by medications or other measures. In a Texas case, for example, a federal judge said a worker with epilepsy was not disabled because he was taking medications that reduced his seizures.
In deciding whether a person is disabled, the bill says, courts should not consider the effects of “mitigating measures” like prescription drugs, hearing aids and artificial limbs. Moreover, it says, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Senator Tom Harkin, Democrat of Iowa, the chief sponsor of the bill, said: “The Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation. The more successful a person is at coping with a disability, the more likely it is the court will find that they are no longer disabled and therefore no longer covered under the A.D.A.”

Senator Orrin G. Hatch, Republican of Utah, said the bill, by establishing more generous coverage and protection, “will make a real difference in the lives of real people.”

The Washington Post wrote:

Rights for the Disabled: IT WENT largely unnoticed in a week of economic upheaval, but Congress approved one of the more momentous pieces of civil rights legislation in recent years. The bill, passed overwhelmingly in the House and by unanimous consent in the Senate, will significantly broaden protections for the disabled. It instructs the Supreme Court to act "in favor of broad coverage," a distinction that should make it easier for disabled workers to claim discrimination. By explicitly arguing for a less constrictive interpretation, lawmakers sought to restore the intent of the original Americans With Disabilities Act of 1990; the Supreme Court has imposed a consistently narrow interpretation of the ADA. President Bush has said that he will sign the bill into law despite previous concerns that the legislation would spur excess litigation.

The legislation is the result of two years of remarkable cooperation between business groups and disability rights organizations. The compromise strikes a balance as it guarantees rights for workers with "actual or perceived impairments." For example, airlines can no longer discriminate against prospective pilots if the applicants employ "mitigating measures," such as corrective eyewear. ... [The bill protects intermittently disabled workers who can] prove they have a disability that "would substantially limit a major life activity when active." The bill will also provide protection, for the first time, to workers with serious ailments such as diabetes, epilepsy and cancer.

Business and disability groups are pleased with the final version of the bill and said that collaborating on the legislation should reduce the number of lawsuits over its implementation. The direct language of the bill, and the laudable cooperation that forged it, should also improve employment levels for the disabled. Two out of three people with significant disabilities are unemployed, a disturbing statistic that disability organizations say is unchanged from when the original ADA became law. This time, Congress's intent is clear, and we hope the courts follow it.

These two articles described case after case where the august Court cruelly denied protection to disabled individuals even though the intent of the Americans With Disabilities Act should have been clear. As the Times noted, The court went wrong by “eliminating protection for many individuals whom Congress intended to protect” under the 1990 law. As Senator Tom Harkin said: “The Supreme Court decisions have led to a supreme absurdity.” The question these articles brings to mind is, Why the needless cruelty of these excessively narrow interpretations? One would almost conclude that the only thing supreme about this Court is its supreme indifference to what matters in the lives of real people.

How Fares The Republic: Movement Conservatism Cruelty

This embrace of cruelty is arguably the dominant feature of the present conservative movement. - Ta-Nehisi Coates

Romney gives his own explanation for his loss:

"You can imagine for somebody making $25,000 or $30,000 or $35,000 a year, being told you’re now going to get free health care, particularly if you don’t have it, getting free health care worth, what, $10,000 per family, in perpetuity — I mean, this is huge," Mr. Romney said. "Likewise with Hispanic voters, free health care was a big plus. But in addition with regards to Hispanic voters, the amnesty for children of illegals, the so-called Dream Act kids, was a huge plus for that voting group."

The only reason for moving the United States toward the universal health care offered by most other prosperous nations is to bribe voters? Let's look at that premise.

Back in 2010 2009 Andrew Sullivan described a good idea:

a healthcare plan that expands access, removes obvious cruelties and inefficiencies, allows more people into the system and can be plausibly described as universal coverage.

In the same year 2010 he wrote:

We now have more public clarity on the critical issue. The Democrats want to provide basic private insurance to the 40m or so working poor who don't have it. The Republicans don't  want to. Both parties want to stop the cruelty of denying people access to health insurance because they have a pre-existing condition, but if you do only that, then the insurance companies will take a big hit and hike premiums even more, rendering even more people without insurance. So you have to have a way to get the companies to agree to this by giving them 40m more customers to outweigh the costs. Only the Obama plan does that. The Republicans have nothing.

Except Romney didn't want to stop the cruelty, because doing a good thing for the people would reflect favorably on the Democratic party. Romney said he had his own plan, but here he is tacitly admitting that he didn't, because if he had, the American people would have given him credit for it and erased the Demo advantage. 

Here is Sullivan (blogging a Republican primary debate) on conservatives' cruelty:

I was surprised by the ineptness of Perry's attack on Romneycare. But I am more surprised at the cheering of someone dying because he couldn't afford intensive care. Yes, the GOP is now not only cheering executions; they are cheering people dying because they cannot afford any health insurance. Cheering death by poverty. "Yeah!" came the cry at the thought of a twentysomething dying because he didn't have insurance. I didn't think I could be more shocked by the instincts of those in the Republican base, but I just was.

Ta-Nehisi Coates recounts an email sent by a federal judge:

"A little boy said to his mother; 'Mommy, how come I'm black and you're white?'" the email joke reads.

"His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"

Coates writes:

What stuns you about this "joke" is the sheer embrace of cruelty. Here is a woman who lost her life to cancer. And [the judge's take on this] is imagining her son as the product of bestiality.

Though less crudely stated, this embrace of cruelty is arguably the dominant feature of the present conservative movement.

Andrew Sullivan's comment on the Romney excuse for his loss which begins this post:

Romney gives his own explanation for his loss to the only people he really cared about: his donor base. As usual with Republicans these days, there is no real personal responsibility. They do nothing wrong ever. They confess to no mistakes themselves. And we now kinda know that Romney's "47 percent" remarks were actually what he deeply believes.

A number of newspapers endorsed Romney, just before the election, arguing that the kinder gentler Romney who miraculously appeared just at the end of the campaign was the real Romney, the one we'd see in the Oval Office.

But it wasn't. Romney lied when he said his "47 percent" remarks didn't reflect his actual beliefs. He had no plans to "stop the cruelty of denying people access to health insurance" because they were poor, because he sees such things solely from the self-aggrandizing politics of political advantage. The enormous contribution to the public good of a health plan which will prevent millions of Americans' needlessly dying from preventable illnesses meant nothing.

This is the mindset that without shame practices the politics of obstruction. This is the cruel worldview which is willing to sabotage the nation's wellbeing for partisan advantage.

If the shoe were on the other foot, if it were the Democrats who were wreaking havoc with our politics, the party that was just repudiated at the polls by the American people would call it treason.

It is not partisan to object to the Republican party as it now stands, because at the present day  it does not represent a viable political alternative. It is not partisan to object to cruelty and heartlessness and destruction. One instead notes that one is dealing with cruelty and heartlessness and destruction, and passes regretfully on.

Defining Liberalism: Randall Kennedy's 'My Race Problem—And Ours'

In The Liberal Founding this weblog cited Professor Rowley's list of characteristics of liberalism: “universalism, individualism, egalitarianism and meliorism (or human flourishing).” In essaying a definition of liberalism perhaps the first task is to observe that by and large the left disagrees, both in fundamental outlook, and on nearly every point of liberal thought.

I was first directed to this point by Allan Bloom's The Closing of the American Mind, which, though not liberal itself, clearly assumed that to discuss 'liberal' as synonymous with 'left' would be conceptually incoherent. The issue is confused because media discourse generally treats 'liberal' and 'left' as synonymous.

An illustrative example of this fundamental dichotomy is Harvard law professor Randall Kennedy's My Race Problem—And Ours, published in Atlantic, May 1997. Jim Sleeper analyzed some of Kennedy's arguments in his ironically titled Liberal Racism:

First, Sleeper critiqued the left's rejection of liberal universalism in favor of class—particularly racial class. Sleeper said that [effective crusading against racism originates from] "people who yearn for justice, not merely for the advancement of a particular group," and quoted Glenn Loury's apt phrase, "... the moral requirements of a humanism which transcends race."

Sleeper cites Kennedy:

... Analogizing race to family is a potent rhetorical move used
  to challenge those, like me, who are animated by a liberal,
  individualistic, and universal ethos which is skeptical of, if
  not hostile to, the particularisms—national, ethnic, religious,
  and racial—which seem to have grown so strong recently.

That is, family, and in particular “brotherhood,” in the political realm is incompatible with the liberal universalism and individualism cited by Rowley above. [Note that while the Founders wholeheartedly embraced the 'liberty' and 'equality' of the Continent's rallying cry, liberté, égalité, fraternité, “brotherhood” is absent from their discourse. In contrast with the left, liberalism is public and civil.]

The reason is that the obligations of family—or racial brotherhood—tend to be “antecedent to choice,” in the artful phrase Kennedy borrows from Michael Sandel. Brotherhood, or in more general terms, 'community,' tends to be coercive in ways that liberalism's equivalent term, The People, is not. [A phrase I grew up with was “put three Americans together and they form a committee.” De Tocqueville noted the tendency of the citizens of the infant American nation to form “voluntary associations.”]

This brings us to a crucial fact. In a world of kings and emperors, sultans and rajahs and warlords, the Founders created a nation with no rulers. To this day no one in our politics—mayor, county executive, governor, president—is legitimately called a ruler. This is because a ruler is someone who can subject others to their will, and in a free country no one can do that. We carelessly speak of an election as expressing the will of the voters, perhaps because we are influenced by one of Rousseau's terrible errors, the notion that “the general will is always right” (which laid the foundation for the Terror). [As Orwell warned, “the slovenliness of our language makes it easier for us to have foolish thoughts.”]

'Community' as used by the left means that the group is everything and the individual is nothing (and thus the rejection of the liberal principle that the locus of freedom is the individual and not the group or class). It is because communitarianism rejects justice in favor of class, subjects civil rights to the notionally less selfish claim of “group rights,” that Kennedy objects to racial kinship. "I reject the notion of racial kinship," he wrote. "I do so in order to avoid its burdens and to be free to claim what the distinguished political theorist Michael Sandel labels 'the unencumbered self'."

The harmful effect of treating a person as a representative of a (racial) class, at the expense of justice (the equal civil rights of the single person) can be seen in the treatment of Justice Clarence Thomas. The liberal position is "I disapprove of what you say, but I will defend to the death your right to say it," but Justice Thomas regularly confronts audiences who take the position that a black man does not have the right to be conservative. This is a double standard as well as a denial of equality, rightly opposed by "people who yearn for justice, not merely for the advancement of a particular group" (as noted above).

To Summarize:
First, 'liberal' and 'left' are not synonymous.
Second, the left's orientation toward class in the form of racial community cannot be reconciled with the universal justice favored by liberalism.
Third, rulership and its attendant coerciveness is illegitimate in our liberal society. The coercion of a 'general will' (saying "the people rule" instead of saying "the people govern") is implicit in left communitarianism.
 
This is just a beginning. I hope to post further on this topic.

How Fares The Republic: The Post Truth Candidate

In writing the Declaration and the Constitution the Founders delineated an intentional moral order devoted to liberty and, as Thomas Paine wrote, honesty:

The circle of them is not so great as some imagine; the influence of a few have tainted many who are not naturally corrupt. A continual circulation of lies among those who are not much in the way of hearing them contradicted, will in time pass for truth.

Now consider the candidate selected by movement conservatism. As Andrew Sullivan wrote in Five Lies in 30 Seconds:

Kessler looks at the latest post-modern Romney ad: post-modern because truth is completely immaterial to this propagandist dreck. It's one thing to broadcast untruths, or misleading half-facts as obvious truths; it's another to be called out on them, refuse to change them, and intensify their reach. …

Obama is now fighting for his political life. And right now, to my genuine horror, he's losing to a fraud, a war-monger, a liar and a budget-buster.

As Ta-Nehisi Coates wrote in It Was Like a Sucker-Punch: Here are two interesting selections from Jan Crawford's rather amazing autopsy of the Romney campaign. First the expectations:

"There's nothing worse than when you think you're going to win, and you don't," said another adviser. "It was like a sucker punch."

Their emotion was visible on their faces when they walked on stage after Romney finished his remarks, which Romney had hastily composed, knowing he had to say something. Both wives looked stricken, and Ryan himself seemed grim. 

They all were thrust on that stage without understanding what had just happened. "He was shellshocked," one adviser said of Romney.

William Saletan wrote in In The Obama-Romney Showdown Truth Beat Lies:

Rejection of external evidence sealed Romney's fate. ...

“There's nothing worse than when you think you're going to win, and you don't," a Romney adviser tells Crawford. "It was like a sucker punch." But when the punch comes from ignored reality, you’re not just the sucker. You’re the one who suckered yourself.

Coates continues, "From Adam Serwer":

Ideology can place blinders on everyone, of course--I don't know how many liberal friends I've tried to talk out of their affinity for rent control--but the incentives for misleading one's audience are not evenly distributed across the left-leaning and right-leaning media. The Romney surge after the first debate didn't translate to a widespread liberal belief about systemic bias among polling firms, for example.

Much of the conservative media is simply far more cozy with the Republican Party than its Democratic counterparts. ... Departing from the party line, particularly if one does so in a manner that seems favorable to Obama, would be to reveal one as an apostate, a tool of liberalism. ...

Conservative media lies to its audience because much of its audience wants to be lied to. Those lies actually have far more drastic consequences for governance (think birthers and death panels) than for elections, where the results can't be, for lack of a better word, "skewed."

To sum up:
First, as the Republican Party looked on, its presidential campaign lied wholesale.
Second, that campaign was revealed, after the election, to have had no conception of the truth of its competitive situation (“A continual circulation of lies ... will in time pass for truth.”).
Third, as movement conservatives the campaign had valorized ideology, which may be described as the substitution of belief for evidence and reason.
Fourth, “Lies actually have far more drastic consequences for governance (think birthers and death panels) than for elections.”
Fifth, the campaign was not only duplicitous but bumbling and inept (Google “Romney ORCA”).
Last, to reiterate Item Four, had this functionally insane outfit achieved the Oval Office, the nation would have endured a reign even more strongly defined by deficiency of competence than the late W. Bush regime.

Paine deserves the last word: “My solemn belief of your cause is, that it is hellish and damnable, and, under that conviction, every thinking man's heart must fail him.”

How Fares The Republic: The Liberal View of The Market

First, credit to whom credit is due. In the face of a presidential candidate of the obscenely privileged one percent, and a VP candidate known best for a budget plan to dismantle the humanitarian safety net for the poor, America's minorities, women, and the young rose to the challenge. They marched to the polls in great number to let their choice of a “politics of kindness”* be known.

In the words of Carl Sandburg, “The People, Yes!”
________________________________________________________________

Henry Fairlie was an English journalist and author who chose to become an American. In Bite The Hand That Feeds You,  he argued that the realm of the patriot is the political realm, and that the political realm constitutes the public, not the private, sector. “Is it really necessary to reject civic consciousness, of which compassion for one's less fortunate fellow citizens is the ultimate binding cement,” he asked, “in order to be a conservative or neoconservative?”

The Romans insisted, he noted, “on the three great civic virtues: dignitas, gravitas, pietas.” … Otherwise “the idea of citizenship** [is] all but submerged in appeals to private pursuits, private satisfactions, the private sector.”
 
For those who glorify “the market,” he continued, “the purpose is always the same, to leave the economic realm in command over all others, to explain all human impulse, as it is expressed in the political process, in terms of nothing more than the ‘acquisitive instinct.’ ... they are in bondage to an economic view of human aspiration against which they have no defense once the supremacy of the political realm has been surrendered.”

As for the Romney candidacy, his gracious concession speech deserves tribute in the spirit of Shakespeare’s “Nothing in his life became him like the leaving it.” Nevertheless, I fear that his ascension to the presidency would have represented the triumph of the “economic view,” of the valorization of private gain at the expense of the public good, over the political realm. There is the sense of a narrow escape from a crisis of the republic.
______________________________________________________________

Best line of the day: 
Atlantic columnist Molly Ball cites “a smart [GOP] party strategist” who wrote, “Bain was a critical part of the Romney image that just couldn't sell to enough voters in Ohio. He came off as the guy who got rich by buying your Dad's employer, firing your Dad, stripping down the business, and making hundreds of millions and buying jet-skis and houses with car elevators and dancing horses while your Dad visits the food bank and is forced onto unemployment. The Romney team should have known this was going to be a problem.” [Emphasis added.]
 
(*) “Democratic politics is the politics of kindness”: Garrison Keillor, Homegrown Democrat
(**) For the power of citizenship in Roman justice, note how Paul (born Saul of Tarsus), as recounted in the King James Bible, responds to a provincial ecclesiastical court in Acts 25:11 - 12: “For if I be an offender, or have committed any thing worthy of death, I refuse not to die: but if there be none of these things whereof these accuse me, no man may deliver me unto them. I appeal unto Caesar.
Then Festus, when he had conferred with the council, answered, Hast thou appealed unto Caesar? unto Caesar shalt thou go.” [Emphasis added. In Acts 22, Paul is recorded as stating that, in contrast to those who paid a large sum of money to acquire citizenship, he was a Roman by birth.]