Law and the Contradictions of the Disability Rights Movement.

• Author: Pratt, Robert W.
• Position: Book review

LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT. By Samuel R. Bagenstos. New Haven & London: Yale University Press. 2009. Pp. xii, 228. $48.

INTRODUCTION

While reading this book in 2010, almost twenty years to the date after President George H.W. Bush signed the Americans with Disability Act ("ADA"), one realizes how much the world of politics has changed. It is difficult to remember a time when such major legislation passed the U.S. Senate by a vote of 91 to 6 and the House of Representatives by 377 to 28) Even more surprising, as we look back to 1990, is the fact that the executive branch was controlled by a different political party than the legislative branch. Contrast this legislative record with the milieu surrounding the health care reform legislation of 2010 and the economic stimulus bill of 2009, and the overwhelming bipartisan vote on the ADA seems quite remarkable.

This unique legislative history provides the context for Professor Bagenstos's new book, Law and the Contradictions of the Disability Rights Movement. In his book, Bagenstos traces how the often-diverging strands of the disability rights movement coalesced to create change, and how the diversity of the movement is now inhibiting future change. In short, Bagenstos's book is about the contradictions and tensions within the disability rights movement and the law it forged. His analysis and conclusions are very insightful and appear to be drawn from both his numerous articles on the subject and his experience in the movement, including arguing several significant ADA cases before the Supreme Court. Indeed, while there are many aspects of Bagenstos's book that make it worth reading, his analysis of the movement's core contradiction, its history, and its ongoing impact are particularly helpful, even to those who have already had significant exposure to the ADA.

1. A MERGER OF IDEAS

   As Bagenstos correctly points out, the ADA was a merger of ideas from both conservative and liberal voices within the disability rights movement. According to Bagenstos, traditionally conservative proponents of the ADA favored its "anti-discrimination and accommodation model" because it appealed to their desire for "independence" from the overprotectiveness of the government. To these conservatives, treating individuals as being "entitled" to "special rights" because of their medical conditions was impermissibly "paternalistic" (pp. 13-25). This idea also garnered support from disabled people seeking the "dignity of risk," or, in other words, the ability to assume personal responsibility for their lives and bear the consequences of their choices. In contrast, Bagenstos forcibly argues that liberal proponents, adhering to traditional social welfare attitudes, rallied to the ADA's protection because they saw the disabled as a class of people entitled to a protective class status, similar to that of race, gender, and age. As Bagenstos points out, this rudimentary ideological difference between the two core constituencies of the ADA lies at the heart of the contradictions in the law and in the movement.

   The historical background laid out by the author helps to bring out the conflicting views of those who favored and worked for this legislation. I believe most people, including myself, were not fully aware of this history. I thought the ADA was a natural extension of other civil rights laws of the 1950s and 1960s. While this may be true in terms of legislative drafting and hearings, this view overlooks the lengthy history of local and state government actions to fully integrate the disabled into civic life. According to Bagenstos, the movement traces to the beginning of the Great Depression and the forming of the League of the Physically Handicapped in New York City, which was organized to protest discrimination by both the state and...