The road to universal disability
by Walter Olson, from Reason Magazine
I've sometimes wondered why upper-middle-class politicians treat the disabled-rights lobby with such gingerly deference, and now I think I've figured out the answer: that lobby may soon represent a majority of their constituents.
Last April the Hartford Courant reported that nearly one in three high school students in the famously affluent Connecticut town of Greenwich are now officially regarded as "disabled." It seems competitive Greenwich parents these days no more think of sending the youngsters back to school without a disability designation than without a new parka and pencil kit.
If you want an advance peek at how disabled-rights law might play out in the rest of American society a few years down the road, look what it's doing to American education right now. Driven by laws which make disability designation the key to a long list of entitlements from private tutoring to extra time on tests, special ed is busting school budgets nationwide. In Connecticut, farther down this particular road than most states, special ed by itself now consumes, on average, 18 percent of school budgets; in rural Voluntown the figure has hit 29 percent.
Parents want the best for their kids, and the advantages of a medicalized label such as "learning disability" can be substantial, including individually tailored learning plans, laptop computers, and the right to take notes when other students can't. "You get a lot more one-on-one time with your teachers," said one Greenwich student. So friendly experts hang out their shingles advertising their diagnostic skills, while entrepreneurial lawyers organize parents to press their rights.
Under federal law, schools that want to resist demands for special-ed services must jump through elaborate due-process hoops and risk "one-way" attorneys' fee awards (the school system pays both sides' lawyers if it loses but collects nothing if it wins). Between 1990 and 1994, the number of formal special ed appeals tripled in the Nutmeg State. "I used to be able to put a year's worth of hearing records in one file cabinet," state special-ed attorney Theresa DeFrancis told the Courant. "They are in five or six cabinets now."
For ground-level educators, the hassle is astounding. A few months ago one of my neighbors, the principal of a middle school in a nearby Connecticut town, told me he now is obliged to spend half his time on special-ed issues. I thought he had to be exaggerating, yet the Courant spoke to other principals who estimated they too were spending half their time on such demands.
School officials are often reluctant to give offense, but many in this case were willing to be outspoken. "Nobody is slow anymore," commented Norwalk superintendent Ralph Sloan. "If you are not in the fast track, you have a disability." "Anybody can be 'special education.'", added Middletown special-ed chief Mariann Rossi-Ondusky. "I've just got to give you the right tests."
Reported diagnosis rates vary drastically from town to town, with the apparent incidence of learning disability, for example, running from less than 3 percent to nearly 20 percent. Curiously or not, some of the state's lowest reported percentages came from Bridgeport, a city almost as famous for poverty as Greenwich is for wealth. To the extent that childhood disabilities correlate with public health woes -- deficits in nutrition or prenatal care, for instance -- you'd expect Bridgeport to have the high numbers and Greenwich the low. But then, not many Bridgeport parents can afford those pricey lawyers and child-development experts.
Having grown to expect special assistance in grade school, the new Disabled Generation is apt to level similar demands as it moves up through college and into the workplace. Already 5 percent of Connecticut kids, up from 2 percent a decade ago, are getting accommodations on the SAT, mostly extra time.
At the level of professional and occupational testing, the legal sparring is intense. In a widely watched case last fall, the U.S. Court of Appeals for the Second Circuit ruled that the New York State Board of Law Examiners had violated Marilyn Bartlett's rights by refusing her further accommodation. Bartlett had already failed the bar exam five times, despite such accommodations for her learning disability as a 50 percent time bonus, a private room, and an assistant to read the exam questions aloud.
What the law is really doing in such cases, it seems clear, is forcibly redefining old standards of competence. Just as the PGA wrongly imagined until the Casey Martin case that they had the right to define golf in the traditional manner to include walking from hole to hole, so the bar examiners must be disabused of the idea that they can hold aspiring lawyers to traditional legal skills such as the ability to assimilate large amounts of written material quickly. The same lesson is being taught to the administrators of medical exams, who are nowadays steadily yielding ground to the demands of would-be M.D.s with L.D. diagnoses in their hip pockets.
Don't assume the institutions downstream -- the hospitals or law firms who hire the newly fledged doctors and lawyers -- will be able to act as backstop when standards decline. In general, it's considered a violation of the law for an employer to count against an applicant that his transcript indicates a record of accommodation, or to ask what kinds of accommodations were given or what disabilities were claimed. In fact, disabled activists have been pressing for the elimination of the loathed asterisk indicating that a test was taken under nonstandard conditions, arguing that it violates the applicant's privacy rights.
After her excellent August 1997 New Republic article criticizing the boom in college-level accommodation demands, writer Ruth Shalit came under attack from disability activists. Typical was an Ohio State law professor's overheated view of the supposed consequences of Shalit's views: "Better to let them be uneducated and unemployed, drawing on our welfare rolls." From this and a thousand similar statements by advocates, you might conclude that whatever the high costs and whatever the damage to standards of competence disabled-rights laws might be doing, they can at least be defended as effective in enabling disabled persons to work rather than sink into dependency on government checks.
But that's not so. The newest study on disabled employment, released last summer, confirms what informed observers already realized: the disabled-rights laws passed in the last two decades, including the Americans with Disabilities Act and various others, have been an utter failure at their announced aim of moving disabled persons into work. The more laws we pass in the name of disabled rights, in fact, the more disabled people seem to sit home jobless.
Last summer's bad news came from a Harris survey for the National Organization on Disability, which found that 29 percent of disabled persons are employed full or part time, down from 33 percent in 1986, notwithstanding a decade-plus of the most intense legislation and activism on behalf of the disabled, the centerpiece being the ADA. Other studies confirm a drop in of labor force participation by the disabled since the law's passage. None of the numbers are perfect, and definitions of disability vary widely from one study to another. But at a hearing convened by the Civil Rights Commission November 12, academic demographers agreed that the trend is indeed a downward one.
The one exception -- seeming and temporary -- was a set of Census Bureau figures released with great fanfare in 1996; it showed jobless rates for the disabled falling modestly by one measure between 1991 and 1994. As it happens, however, those were years of strong recovery from the trough of the 1991 recession, and the same rates fell more sharply among nondisabled workers, which meant the gap between the two groups actually widened. To this day, some disabled advocates still cite the census numbers to assert that the ADA "created hundreds of thousands of jobs."
The deterioration of the job situation for the disabled does not, of course, prove that the ADA has actually made things worse. Quite possibly the numbers owe more to the "welfare trap" effect in which beneficiaries spurn work rather than give up their Social Security benefits, including health coverage. But to Russell Redenbaugh, a member of the U.S. Civil Rights Commission (CRC), it at least suggests that the time has come to examine some of the unintended effects the law may be having.
In September, Commissioner Redenbaugh was the lone member to file a dissent when the federal advisory panel came out with a lengthy report rejecting second thoughts about the ADA's effects and calling for -- what else? -- stepped-up enforcement. Pointing out that "the definitions and concepts of Title I have been expanded in almost every way imaginable, with the resultant trivialization of 'disability'," Redenbaugh expressed his fear that "laws and regulations that are designed to enhance opportunity and expand rights often can end up serving as constraints and limitations to both."
A Philadelphia investment manager and political independent appointed to the CRC in 1990, Redenbaugh brings a unusual degree of personal experience to bear on the issue, being the only disabled member to serve on the civil rights body since it was set up in 1957. (He was blinded and lost most of the use of his hands in an explosion when he was 17.) As a business person, he's also familiar with the hiring process.
So it's worth paying attention when he says he thinks one of the ways the ADA has backfired is by forbidding employers from asking questions "likely to elicit information about a disability" at any stage of a job interview before an offer is made: "My own fear is that the ADA implementing regulations can have a chilling effect on the hiring of the disabled."
Provocatively, Redenbaugh's dissent includes a list of sixteen extreme or remarkable ADA cases that have reached courts around the country, many of which, he writes, "defy credulity and are absolutely not what we intended when we passed the law."
That's exactly the sort of thing that drives the other side crazy: Disabled-rights advocates have virtually tagged it as a hate crime to trade "horror stories" about the statute, as some of us have been known to do from time to time. It must take a certain quiet courage for this seemingly mild-mannered public figure to risk the kind of vilification he could face if the disabled-rights community -- which, to put it mildly, does not have a record of taking criticism gracefully -- identifies him as the equivalent of a "disabled Tom Sowell."
Even if the civil rights establishment resists the temptation to go after Redenbaugh personally, they're almost certain to tune out his message. In doing so, they'll put themselves in the role of the husband stepping on the gas pedal in the old joke. "But, Harold," his wife objects, "aren't we headed in the wrong direction?" "Who cares?" Harold replies. "We're making great time."
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Contributing editor Walter Olson (firstname.lastname@example.org) is author of The Excuse Factory and senior fellow at the Manhattan Institute.