The costs of easy victory.

Author:Waterstone, Michael E.
 
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ABSTRACT

Studies of law and social change often focus on areas of intense conflict, including abortion, gun rights, and various issues around race, gender, and sexual orientation. Each of these has entered the culture wars, inspiring fierce resistance and organized counter-movements. A reasonable assumption might be that social change in less controversial areas might be easier. In this Article, I suggest that it is not that simple. Using the disability rights movement, I demonstrate how flying under the radar leads to unappreciated obstacles. The disability rights movement had a relatively easy path to the passage of the Americans with Disabilities Act (ADA), an omnibus federal civil rights law prohibiting discrimination on the basis of disability. Disability rights were not an issue of major public importance when the ADA was passed; the vast majority of people were completely unaware of the law's passage. Moving forward, to the extent awareness of the ADA exists, it has centered on public and judicial trepidation over granting what is perceived as some form of benefit, for which there has not been an extensive public dialogue, to a large and amorphous category of people, many of whom have no natural claim to any history of discrimination. Thus, a new way to understand the ADA's inability to make more progress on some of its more transformational goals is the limited socio-legal conflict around disability rights, combined with the expansive categories of people the ADA intended to cover. It is hard to transform society if society is not paying sufficient attention.

TABLE OF CONTENTS INTRODUCTION I. CONFLICT AND SOCIAL CHANGE A. The Role of Conflict in Pursuit of Rights B. Disability is Different II. LIMITED CONFLICT AND CATEGORY AMBIGUITY AS A NEW FRAME FOR UNDERSTANDING DISABILITY RIGHTS LAW CONCLUSION INTRODUCTION

Studies of law and social change often focus on areas of intense conflict, including abortion, gun rights, and various issues around race, gender, and sexual orientation. Each of these has entered the culture wars, inspiring fierce resistance and organized counter-movements. A reasonable assumption might be that social change in less controversial areas is easier. In this Article, I suggest that it is not that simple. Using the disability rights movement, I demonstrate how flying under the radar leads to unappreciated obstacles. This is especially the case when, as with disability, the category of people who are claiming rights is ambiguous and includes individuals with no apparent claim to a history of discrimination.

Seeking to transform the social and political order, various individual disability-specific communities unified in the 1970s to create the modern disability rights movement. This approach provided increased political power, making federal omnibus civil rights legislation possible. The most notable examples are the Americans with Disabilities Act (ADA), (1) and, when the judiciary responded with narrowing interpretations, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). (2) In so doing, the movement consciously adopted the civil rights framework, patterning their efforts on social movements built up around race and gender. They envisioned their struggle as one for equality and rights. At the same time, consistent with the collective approach, advocates turned away from focused constitutional rights claiming, instead pursuing a broad range of federal legislative rights at once.

In previous work, I examined how the disability rights movement has avoided state and federal constitutional claims and suggested areas where constitutional claiming on behalf of discrete groups within the disability rights movement might provide meaningful doctrinal gains. (3) In this Article, while moving away from discussing specific legal claims, I continue the inquiry into how the social movement for people with disabilities has and continues to influence how rights are expressed and implemented. Somewhat unique amongst identity-based social movements, disability has stayed away from the culture wars. Being less divisive, and less threatening, disability rights do not inspire the same values conflicts as many other groups. Disability is also a more amorphous group identity than that found in other civil rights movements. The many different groups and categories of people with disabilities that joined together to help secure passage of the ADA, and are covered by its broad protections, are not necessarily natural allies, nor are there similar levels of public support and understanding for what these different constituencies might urge in the name of equality. (4)

Although low political salience can be a useful asset to get legislation passed, and broad identity might increase political strength, both of these features have influenced and continue to influence the disability rights project in previously unexamined and interrelated ways. To the extent that the disability rights movement saw the ADA as having the potential to create certain types of transformative change, such change may be unrealistic without engaging in more of an intergenerational, multidimensional, and intense socio-legal conflict than that which preceded the passage or even the implementation of the ADA. Especially in an area like disability that asks for resource redistributions, society cannot be transformed if it is not paying sufficient attention. To the extent people are engaged with the idea of disability rights at all, their attention is focused on the (perceived) dubious claims of individuals at the outer edges of what the ADA covers. But because the ADA links these disparate groups, this negative attention impacts the entire movement.

It is axiomatic that social and political debates influence law. A growing body of literature examines the interactions between social movements, the public, the legislature, and courts, to chart how different groups construct their constitutional cultures. (5) Much of this work focuses on groups and claims in areas of intense social conflict--including race, gender, sexual orientation, and even gun rights. This body of work demonstrates that, in addition to multilevel advocacy in pursuit of their goals, these movements experienced dedicated countermovements, appeals to actors outside each side's core constituency, repeat players, and trips to the Supreme Court that further mobilized key players on either side. Often, these battles occurred in all branches of state and federal government. (6) As part of a continuous feedback loop between social movements, legislatures (both state and federal), and courts, the judiciary reflects at least in part what is happening in these other spaces. Conflict guides and focuses these constitutional conversations. Although the disability rights movement patterned itself after several of these movements both in terms of tactics and strategy, it has not really been studied in this way.(7)

Here, in examining how the social movement of people with disabilities has influenced the evolution of rights, and continues to do so, I make two claims. The first is that the conflict around disability rights is less intense, and thus fundamentally different, than in several other identity-based civil rights movements. The ADA was an ambitious statute, seeking to transform attitudes around disability and the built environment and go deeply into the private sector to bring people with disabilities into full citizenship. By using a broad definition of disability, it potentially covered many different types of individuals, many of whom had no natural claim to any history of societal discrimination or stigma. Yet there was still relatively little opposition to the ADA's passage. There are many reasons for this, ranging from a lack of animus toward disability generally to the disability rights community's intentional effort to minimize public awareness of the new law in an effort to make passage easier.

Relatively speaking, the disability rights movement was then and remains today important to only a small group of people. There is no organized anti-disability movement, politicians do not regularly take public stands on matters important to the disability community, and views on disability issues are not a factor in judicial selection or confirmation. There are limited repeat players in disability cases. This lack of conflict reflects low public engagement on disability issues. Whereas the nation has the "conviction that an essential mission of the federal government is the prevention of racial and gender discrimination," (8) the ADA has been described as having low political salience. (9) There has certainly been what is commonly described as a "judicial backlash" to the ADA, with judges at all levels interpreting its provisions narrowly. But rather than demonstrating opposition to the equality claims of many individuals with what might be considered more serious disabilities, these cases typically center on judicial trepidation over the disability category getting too large.

My second claim is that the lower temperature conflict over disability issues, combined with public and judicial concern over the ambiguity of the category, shed new light on certain movement disappointments. In studying backlash, constitutional and social movement scholars have recently argued that intense conflict is a necessary condition for certain types of social change. (10) If vigorous contestation helps us understand law, its absence should have an impact as well. In many ways, the ADA has been a phenomenally successful statute, creating a new world of opportunities for people with disabilities. Other groups who have faced stiffer resistance in their quest for rights certainly look longingly at the disability rights movement's avoidance of energetic countermobilization. No movement gets everything it wants, as quickly as it believes it should, so any criticisms of the...

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