Crippled Justice: The History of Modern Disability Policy in the Workplace.

• Author: Stein, Michael Ashley
• Position: Book Review

CRIPPLED JUSTICE: THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE. By Ruth O'Brien. Chicago: The University of Chicago Press, 2001. 288 pp. + xiv.

INTRODUCTION

After only twelve days in office, President George W. Bush announced the "New Freedom Initiative" (NFI), (1) a domestic policy program aimed at "tearing down the barriers to equality" (2) facing the nation's fifty-four million citizens with disabilities. (3) The press conference, convened at the White House, was imbued with indicia of the Chief Executive's commitment to, and empathy with, disabled Americans. Mr. Bush issued his remarks while seated behind a low wooden dais, positioning himself at eye level with the audience, all of whom used wheelchairs. (4) The President also made special reference to the slightly elevated ramped path leading to the East Room, remarking that the topography originated in the removal of stairs "so that Franklin Roosevelt"--whose wheelchair use was consciously concealed from the public during his terms of office, (5) and later ignominiously disregarded by Congress when designating a memorial in his honor (6)--"could make it to his place of work." (7)

Beyond the obvious significance of its timing relative to Mr. Bush's tenure in office, the NFI could hardly have been proposed at a more opportune moment. The announcement came in the wake of criticism (8) of the employment provisions of the Americans with Disabilities Act (ADA), (9) a civil rights statute passed during George H.W. Bush's term in office. (10) Moreover, the President's intention of stringently safeguarding his father's legacy was clearly pronounced: "Wherever a door is closed to anyone because of a disability, we must work to open it. Wherever any job or home, or means of transportation is unfairly denied because of a disability, we must work to change it." (11) In consequence, the NFI's scope is ambitious, encompassing goals that range from alternative means of public transportation to greater home ownership for people with disabilities. (12)

Yet, despite setting forth a promising agenda aimed at improving the relative economic and social position of Americans with disabilities (implementing some policy features that have been promoted by myself (13) and others (14) over the past decade), the dynamic underlying the NFI is troubling. For in seeking to incorporate people with disabilities into mainstream society, the initiative at times places the onus of integration squarely upon the disabled.

To illustrate, central to the section entitled "Integrating Americans with Disabilities into the Workplace" (15) (and played up considerably at the press conference) (16) is a proposal to increase "telework" (meaning long-distance computer-assisted commuting) for disabled workers by "guarantee[ing] low-income loans for people with disabilities to purchase equipment to telecommute from home." (17) As a general proposition, it is difficult to overestimate the importance and centrality of employment (18) both for workers with disabilities, (19) and those without. (20) Certainly, increasing telecommuting and other employment options for disabled workers is a laudable (21) and much needed (22) policy goal. But the NFI's proposal, framed in terms of "integrating" disabled workers, may reify a key misperception that segregates these individuals from the general workforce population. (23) For in seeking to remedy disabled-labor market exclusion by diminishing technological equipment expenses (a dubious proposition in light of the disabled poverty level (24) and the complete absence of targeted job programs to assist them (25)) the NFI implies that what keeps people with disabilities unemployed is their inherent impairments, rather than artificially exclusionary practices. (26) Thus, one logical implication of the NFI's statement of policy is that in order to participate in the mainstream societal function of work, people with disabilities must further adapt themselves to its established routines.

This notion, that individuals who have historically been categorized as "disabled" ought to fit seamlessly into the modern workplace (if they are to fit at all), is central to Ruth O'Brien's recent and provocative book, Crippled Justice: The History of Modern Disability Policy in the Workplace. O'Brien contends that the "whole man" (27) concept of vocational rehabilitation developed during the 1950s and 1960s to "treat" the disabled instantiated the notion that it is people with disabilities, rather than society, that must change. It is to the intellectual, political, and juridical development of this schema that I now turn.

Part I examines the historical underpinnings of the whole man schema and the ways in which O'Brien asserts that it influences Supreme Court opposition to disability-related employment rights. Part II provides an overview of recent scholarship on the Court's ADA jurisprudence and places Crippled Justice within the context of these studies. Finally, Part III critiques O'Brien's averments about the Court's jurisprudence and offers an alternative metric with which to understand these rulings.

1. THE "WHOLE MAN" SCHEMA

   According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers influences judicial attitudes towards people with disabilities, is Supreme Court resistance to disability rights, especially the ADA's employment provisions.

   1. An Epistemic Community of Rehabilitation

      In Crippled Justice, O'Brien traces the legislative history and implications of disability employment provisions from their World War II origins to the present. (28) Medical advances made during World War II, including the development of diagnostic tests and new techniques in neuro- and urogenital surgery, (29) resulted in higher survival rates for severely wounded soldiers. (30) Influenced by the behavioral revolution in the social sciences lead by Franz Boas, the "parent" of modern anthropology, (31) and the developments in psychoanalysis spearheaded by Karl and William Menninger, who shifted the focus of treatment from hospitals back to communities, (32) the emergent field of rehabilitation medicine focused on treating the personalities of disabled people as a means of compensating for their impairments. (33)

      Pioneering doctors such as Howard Rusk (34) and Henry Kessler, (35) sought to develop the egos of disabled people to counterbalance the feelings of inferiority, hostility, and neurosis which Freud believed to accompany disability. (36) Moreover, those at the forefront of rehabilitation medicine subscribed to many of the tenets of the Group for Advancement of Psychiatry, which emphasized the holistic relationship between the psychological well-being of individuals and general societal health. (37) As a result, rehabilitation medicine adopted the goal of restoring a disabled man to a "whole man," an improvement that would in turn enhance communal well-being. (38)

      Through the 1950s, Rusk and Mary Switzer, the director of the federal Office of Vocational Rehabilitation, formulated modern disability policy as the core of an "epistemic community," (39) a term used by O'Brien to define a group of people sharing the same set of beliefs and working towards a common goal of fostering and promulgating their knowledge to others. (40) Referred to euphemistically as "Mr. and Miss Rehabilitation," Rusk and Switzer spearheaded the initiation and implementation of federal rehabilitation programs controlled by medical experts. (41)

      One consequence of Rusk and Switzer's medically oriented perspective was that the epistemic community of rehabilitation applied a medical model of disability. (42) Under this framework, disability was pathologized as a biological aberration. (43) Consequently, the appropriate treatment was to normalize or adapt these anomalous individuals to their surroundings. (44) To achieve this goal, teams of professionals and doctors treated the "whole" patient, psychologically and physically, in hospital-like rehabilitation centers. (45) A second consequence of the rehabilitation community's categorical support of the whole man theory was its resistance to rights-based legislation, notably attempts by activist Paul Strachan to procure an act prohibiting discrimination in employment. This disinclination was motivated by dual concerns. First, that such entitlements would challenge the epistemic community's goal of channeling people with disabilities into the workforce by rehabilitating their defects (rather than by forcing employers to hire misfits). Second, that rights-based legislation would imperil federal funding for vocational rehabilitation programs by drawing attention to the practice of focusing their efforts on those most likely to succeed. (46)

      The crowning glory of Rusk and Switzer's combined efforts was adoption of the Vocational Rehabilitation Act of 1954 (VRA), (47) a key feature of President Eisenhower's larger Cold War agenda of developing "nonsocialistic" domestic social programs. (48) Passage of the VRA resulted in more funds and grants for research, construction of rehabilitation centers, training of vocational rehabilitation professionals, and the establishment of the National Advisory Council on Vocational Rehabilitation. (49)

      The preference for a rehabilitative (rather than a rights) theory for improving the lives of disabled Americans reached a golden age during President Johnson's administration, when the VRA was renewed, (50) even more rehabilitation centers were built, the total federal rehabilitation program budget was doubled, and new advisory boards were implemented, (51) The building of this "rehabilitation empire" peaked in 1967 with the creation of the Social Rehabilitation Service, which consolidated all rehabilitation services under one...