Disability Constitutional Law

• Publication year: 2014

Disability Constitutional Law

Michael E. Waterstone

DISABILITY CONSTITUTIONAL LAW

Michael E. Waterstone^*

Abstract

As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short-or long-term constitutional strategy. Rather, these lawyers take the Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc., holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere.

This deconstitutionalization has costs. State laws still facially discriminate against people with disabilities, often people with mental disabilities, in areas like family law, voting, commitment proceedings, and the provision of benefits and licenses. Federal legislation is an incomplete tool to challenge the exclusions these laws create. Progressive theorizing of constitutional law is happening, just not regarding disability. Although functionally justifiable, this reluctance to pursue constitutional claims impoverishes the disability rights movement, as constitutional claims engage courts in articulating our core values in a way that statutory claims do not. Disability law can and should do more to fulfill the Constitution's guarantees of equal protection and full citizenship. In this Article, I explore what a more progressive future for disability constitutional law might look like. Building on gains by the LGBT movement, I offer specific areas where courts should entertain a more contextualized application of the Equal Protection Clause in disability cases.

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Introduction..............................................................................................529

I. The Constitutional Past and Present of the Disability Rights Movement...........................................................................534

A. Constitutional History................................................................534
B. City of Cleburne v. Cleburne Living Center, Inc.......................536
C. Cleburne's Aftermath, Federalism Decisions, and the Constitutional Foundations of the Americans with Disabilities Act ............................................................................................... 542

II. Is There a Role for Disability Constitutional Law?..............546

A. Doctrinally, Cleburne Still Matters............................................548
B. A Progressive Vision of Disability Rights Framed in Constitutional Terms .................................................................. 555

III. The Example of Marriage Equality and the Path Forward for Disability Constitutional Law: Moving Beyond a Simplistic View of Cleburne.........................................................564

A. Litigation Under the Federal Constitution—Rehabilitating Cleburne ..................................................................................... 564
B. Litigation Under State Constitutions—Challenging Cleburne ... 573

Conclusion..................................................................................................580

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Introduction

Modern disability law is primarily a statutory field. The main relevance of constitutional law is to provide the basis for congressional legislation, either through Section 5 of the Fourteenth Amendment, the Spending Clause, or the Commerce Clause. Although historically disability advocates pursued constitutional theories to reform institutions and achieve access to schools, today the key tool for disability rights is litigation under federal statutes. By and large, this strategy has been successful: the Americans with Disabilities Act (ADA) addresses discrimination in employment, government programs and services, and access to privately owned places of public accommodation.¹ The Fair Housing Act covers discrimination in housing,² and the Individuals with Disabilities in Education Act provides a right to education for school-age children with disabilities.³

This Article takes up the issue of whether, given the preeminence of a statutory strategy, there is any future for disability constitutional law. The largest constitutional "moment" for disability law was the Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc.⁴ There, while ultimately striking down a zoning ordinance as infringing the Equal Protection rights of individuals with mental retardation, the Court held that the disability classification was only entitled to rational basis scrutiny.⁵ In other state and federal constitutional contexts, Cleburne has been applied to achieve a more nuanced Equal Protection review of discriminatory state action.⁶ But not with disability, where subsequent cases have confirmed only Cleburne's most restrictive aspects.⁷ Constitutional law has evolved, but it has stayed frozen in time for people with disabilities.

Disability advocacy has of course continued, but has been primarily focused on legislative reform, culminating with the ADA, and litigation enforcing these statutory rights. In a previous project, I interviewed many of the nation's leading disability rights lawyers, who all confirmed that there is currently no short- or long-term vision to challenge Cleburne, either as decided

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in or as applied in subsequent cases, or to mine its positive implications.⁸ Correspondingly, almost all recent forward-looking disability scholarship has either helped provide a theoretical foundation for or analyzed statutory or other types of policy reform, with sparse discussion of disability constitutional law.⁹

Viewing disability advocacy in relation to the course charted by LGBT advocates highlights the deconstitutionalization of modern disability law. The year after Cleburne was decided, the LGBT community suffered a loss in the Supreme Court in Bowers v. Hardwick, which upheld Georgia's sodomy law as not violating the constitutional rights of homosexuals.¹⁰ In the aftermath of Bowers, LGBT advocates pivoted to state constitutional law, challenging sodomy statutes in state court.¹¹ This shift influenced federal constitutional norms and helped pave the way for the Supreme Court's ultimate overturning of Bowers in Lawrence v. Texas¹² and the Court's recent decision in United States v. Windsor, holding that section 3 of the Defense of Marriage Act was unconstitutional under the Equal Protection Clause.¹³ Similarly, in the (thus far unsuccessful) attempts to pass the Employment Nondiscrimination Act, which would extend employment antidiscrimination law to the LGBT classification, advocates carefully developed and presented Congress with support for the proposition that LGBT individuals were entitled to heightened scrutiny under the Equal Protection Clause.¹⁴ At nearly the same time Congress heard testimony on the Employment Nondiscrimination Act, disability advocates were engaged in passing the ADA Amendments Act of 2008,¹⁵ which, amongst

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other things, removed the primary provision in the original ADA noting Congress's view that people with disabilities were entitled to heightened protection under the Equal Protection Clause.¹⁶

The LGBT and disability causes are of course different, operating in different political and legal spaces. What is good for the goose is not necessarily good for the gander. But the divergence of these two groups does present a stark contrast: LGBT advocates purposefully pursued change with the ultimate goal of having at least some constitutional reform on their agenda; disability advocates have not.¹⁷ Given the success of a legislative strategy and the hostility of the current Supreme Court to expand the Equal Protection Clause, this move is certainly defensible. And the significant canon of disability law scholarship has mined many complex statutory and regulatory issues. This Article breaks new ground by suggesting that such a complete move away from constitutional law has costs and that the exclusion of the Constitution from disability advocacy is not inevitable.

As interpreted in disability cases, Cleburne has limited Congress's ability to legislate on behalf of people with disabilities. These challenges are likely to continue. And some segments of the disability community—specifically, individuals with mental disabilities—have been more at the fringes of statutory disability advocacy, and had a harder time translating legislative successes into the promises of full citizenship.¹⁸ There are still areas where Cleburne, and its cramped vision of disability constitutional law, is used to sanction state action which operates to the exclusion of these groups.¹⁹ Progressive theorizing about the Constitution is already happening, but these efforts thus far have not included disability-specific thinking.²⁰ Courts are actors in our evolving constitutional dialogue, but the conversation has been stilted regarding disability. Despite having much to offer in important discussions about stigma, animus, and exclusion, disability advocates have not been an active part of articulating these constitutional values. The result is that despite a nominal victory in Cleburne, its application has not lived up to its promise and potential, which the LGBT community has helped realize. Constitutional law is at least in part about recognizing past injustices and current prejudice against groups, but it is not being used at all in this way for people with disabilities.

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