DISABILITY BENEFITS AS POVERTY LAW: REVISITING THE "DISABLED STATE".

• Author: Tan, Karen M.

Introduction 1688 I. SSI for Kids and the Origins of Sullivan v. Zebley 1694 II. The Zebley Case as Impact Litigation 1699 III. Zebley at the Supreme court 1705 IV. "It's Not Over": Expansion and Backlash 1709 V. Reflections on the "Disabled State" 1717 INTRODUCTION

"What seems to us so obvious now--that there is a state of being called 'disabled' which... requires special treatment--is a fairly modern perception." (1)

"If disability means anything it means this." (2)

Of all the things President Ronald Reagan wanted to change when he arrived in Washington, D.C., the federal Legal Services Corporation (3) was high on his list. His time as governor of California had convinced him that federally funded legal aid lawyers were using lawsuits to advance radical political ideas and to stymie conservative reforms. (4) A related target was the welfare state, which Reagan had long criticized for fostering dependency and wasting taxpayer dollars. (5) He aimed to reduce the number of Americans who relied on federally funded social welfare programs and shift governmental power into the hands of people who shared his views. Other institutions of American government seemed amenable to his plans, including a Republican-dominated Senate and a U.S. Supreme Court that had shifted markedly rightward since Chief Justice Earl Warren's retirement.

It was all the more surprising, then, that through Sullivan v. Zebley, (6) a lawsuit filed in 1983, legal aid lawyers managed to significantly expand the welfare state, at least for children. They did so not by attempting to expand Aid to Families with Dependent Children ("AFDC"), (7) the public assistance program that had been so central to legal aid efforts in the 1960s and 1970s. (8) Rather, they sought, and won, a broader legal interpretation of who counted as "disabled." Via that aperture, many more children became legally entitled to government income support.

The program at the heart of that case, Supplemental Security Income ("SSI"), is often misunderstood. Public commentators tend to conflate it with Social Security Disability Insurance ("SSDI") and to refer to recipients of either program as being "on disability." (9) But whereas SSDI is a contribution-based program, akin to what is popularly known as Social Security (Old-Age Insurance), SSI is a need-based program of income support. (10) It benefits people who are very poor and whom the government deems exempt from the obligation of labor--namely, people with serious, long-term disabilities, and people over the age of 65. (11) It is the federally funded, federally administered (12) successor to federal-state programs of Old-Age Assistance, Aid to the Blind, and Aid to the Permanently and Totally Disabled. Phrased differently, when Congress created SSI in 1972, it replaced all the major New Deal-era "welfare" programs other than the then-embattled AFDC program (now called Temporary Aid to Needy Families, or TANF). (13)

But SSI also subtly expanded one of those programs--the one aimed at "the permanently and totally disabled." (14) Historically, policymakers and the broader public considered AFDC the income support program for children; when they thought of disability-based income support, they imagined adults as the beneficiaries. (15) But from the start, SSI did cover some children. The law provided that a child claimant should receive benefits if the child's medical impairment was comparable in severity to that of a qualifying adult. (16) The Zebley case, filed on behalf of five-year-old Brian Zebley and similarly situated children, challenged federal administrative rules for implementing this child-focused language. Zebley's lawyers argued that an administrative misinterpretation of the governing statute (an amendment to the Social Security Act) had denied thousands of children their legal entitlements. (17)

The case eventually made it all the way to the U.S. Supreme Court, where, by a 7-to-2 vote, the Court sided with the plaintiffs. (18) At the time, it appeared to be the largest class action ever won against the Social Security Administration (SSA). (19) And it had a stunning effect on the landscape of public benefits. As a result of Zebley, the SSA reviewed hundreds of thousands of previous application denials and benefit termination decisions and issued billions of dollars in back payments. (20) While one of Zebley's attorney's acted as "de facto supervisor" of the children's disability program, (21) the SSA also collaborated with the plaintiffs' legal team to rewrite its policies for evaluating child claimants. (22) In 1989, the year before the Court decided Zebley, 264,000 children were receiving SSI benefits. By 1996, that number had risen to 955,000, and many observers credited Zebley (although as this essay shows, other factors mattered, too). (23)

Eventually, backlash arose, but not before an array of "strange bedfellows" had lined up behind the idea that disability, understood in an individualized, medical manner, was the right way to think about one of the era's most urgent social and political questions: who deserved government assistance? Poverty alone was not a workable criterion--not in a country that had historically associated poverty with moral failure and that had just witnessed an allegedly disastrous "war on poverty." (24) The concept of disability, however, appealed to a range of people, especially once it became clear that the federal government (as opposed to state and local governments) would foot the bill for people who fell into this category. (25) In the words of political scientist Deborah Stone, from her landmark 1984 book The Disabled State, Americans turned to the concept of disability "to resolve the issue of distributive justice." (26)

This essay recounts the history of the Zebley litigation, with an emphasis on the coalition that legal aid lawyers catalyzed and the broader definition of disability that they helped embed in U.S. law and policy. Part I briskly reviews the history of the SSI kids program and explains the origins of the Zebley litigation. Part II explains how and why the Zebley litigation attracted a renowned group of poverty lawyers. Part III documents the interests that coalesced around the plaintiff class as Zebley headed to the Supreme Court and also summarizes the Court's decision. Part IV analyzes Zebley's aftermath: the SSI kids program expanded significantly, resulting in backlash and retrenchment--but not a return to the status quo ante.

A concluding section, Part V, connects this history to an unresolved tension in American law, and in American society more generally: the tension between reducing human beings to their economic value (in pursuit of goals like economic health and productivity) and fostering a climate that is genuinely inclusive, in which belonging does not turn on skin color, biological sex, inherited wealth, or other nonvolitional traits. From a pragmatic perspective, the SSI kids programs carved a path towards inclusion: by providing the bare means of survival, this program increased the chances that a particularly vulnerable class of children would thrive in American society. As Part IV explains, the Zebley litigation also subtly tugged the SSI program away from its touchstone, the labor requirements of the capitalist economy, and thereby suggested that "deservingness" need not be tethered so closely to work-specific impairments. In these ways, the Zebley story underscores the emancipatory possibilities of what Stone provocatively labeled "the disabled state." (27)

At the same time, however, this history offers a powerful reminder of two points that the disability community has long voiced and that scholars, including Stone, have underscored. First, the SSI program has always embraced medicalized understandings of disability and thereby empowered medical gatekeepers, reinforcing the view that people who claim disability are inexpert and untrustworthy. (28) Government reliance on these medical gatekeepers also perpetuates the notion that only a fraction of people who claim disability are "medically worthy"; others, by extension, are unworthy and yet are nonetheless claiming public support. (29)

Second, the expansion of SSI, in the context of a non-universal social welfare system, has reinforced the public impression that to have a disability is to be favored, because it appears to unlock state-created privileges that nondisabled people struggle to obtain. (30) Yet for many people with disabilities, disability has in fact correlated with hardship and exclusion, which is why antidiscrimination laws like the Americans with Disabilities Act and Section 504 of the Rehabilitation Act exist. The link between disability and cash benefits may reinforce the unfortunate and misplaced notion that civil rights laws for people with disabilities are also simply a government subsidy, which therefore must be carefully policed. (31)

Ultimately, then, the Zebley story is one of "triumph and tragedy," to borrow historian John Witt's phrase. (32) It was a triumph for poverty lawyers and their clients, who, under hostile circumstances, continued to press for a more generous and life-affirming social welfare system. But it remains a tragedy that the best route to subsistence for so many children has further entangled disability with medicalization, suspicion, and surveillance.

1. SSI FOR KIDS AND THE ORIGINS OF SULLIVAN V. ZEBLEY

   In retrospect, it is not surprising that there was a legal dispute over the boundaries of children's SSI. When Congress created the program via the Social Security Amendments of 1972, legislators only minimally engaged with the child-focused provision of the law. According to lore, the decision to include children among the law's beneficiaries originated not with any legislator or political constituency, but rather with a civil servant named Tom Joe. Joe worked as an assistant to the undersecretary of the Department of Health...