The future of disability law.

• Author: Bagenstos, Samuel R.

CONTENTS I. DISABILITY LAW'S SHIFT FROM WELFARE TO RIGHTS A. Disability Rights Activists Embrace the Antidiscrimination Paradigm B. The Results of the Antidiscrimination Approach II. THE LIMITS OF THE ANTIDISCRIMINATION PARADIGM: STRUCTURAL BARRIERS TO EMPLOYMENT A. Structural Barriers to Employment for People with Disabilities 1. Structural Barriers Generally 2. The Important Role of Health Insurance a. Limitations of Private Insurance b. Limitations of Public Insurance 3. Summary B. The Accommodation Requirement's Ineffectiveness in Eliminating Structural Barriers to Employment 1. The "Job-Related" Rule 2. The Access/Content Distinction C. Treating Accommodation as Antidiscrimination 1. The Analytic Failure of the "Job-Related" and Access/Content Doctrines a. The "Job-Related" Rule b. The Access/Content Distinction 2. The Agenda of the "Job-Related" and Access/Content Doctrines III. THE FUTURE OF DISABILITY LAW: FROM ANTIDISCRIMINATION TO SOCIAL WELFARE LAW A. The Move (Back) to Social Welfare 1. Litigation To Enforce the Medicaid Act 2. Expanding Eligibility for Public Health Insurance 3. Expanding the Services Covered by Public Health Insurance B. Emerging Dilemmas 1. Universal Versus Targeted Approaches 2. Consumer Control C. The Coherence of the Disability Rights Movement CONCLUSION Since its enactment in 1990, the Americans with Disabilities Act (ADA) (1) has dominated discussions of disability law in the legal academy. Literally volumes of work have been devoted to defending, criticizing, and analyzing the statute, the cases interpreting it, and the effects it has had in the real world. (2) That scholarly focus is in many respects entirely appropriate. The ADA was a historic achievement. It represented our society's first comprehensive acknowledgment that people with disabilities are truly equal citizens, fully entitled to participate in all areas of political, economic, and civic life. And in large and small ways the statute has improved the lives of countless individuals who have disabilities. The ADA has made buildings more accessible and people with disabilities more visible in the community, and it has accelerated the process of removing the stigma from disability.

But while the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities, and a number of commentators assert that it has had a negative effect. (3) That result has occurred, I contend, not because of the narrowing interpretations the Supreme Court has placed on the ADA, (4) but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. The ADA's antidiscrimination requirement can prevent an employer from refusing to hire a qualified person simply because the person has a disability, and the ADA's accommodation requirement can force the employer to make some changes in facilities or job tasks to enable individuals with disabilities to perform particular jobs. But those mandates do not require the employer to provide in-home personal-assistance services or transportation to enable an individual with a disability to get to work, nor do they require the employer to provide the individual with health insurance coverage that is as adequate as he or she can receive through Medicaid. (5) The solutions to these problems require more than simply mandating that individual employers cease discriminating and provide accommodations; they require more direct and sustained government interventions such as the public funding and provision of benefits.

In short, the future of disability law lies as much in social welfare law as in antidiscrimination law. Although this point may not be obvious from a scan of legal scholarship, (6) activists "on the ground" have increasingly understood the importance of the social welfare system to achieving the goals of the disability rights movement. (7) Litigation to enforce the Medicaid statute is a growth industry for disability rights lawyers. And the legislative priorities of disability rights advocates have turned in recent times to social welfare legislation: the Ticket to Work and Work Incentives Improvement Act (TWWIIA) of 1999, (8) which removes some of the work disincentives in the social-security-disability programs; the proposed Medicaid Community-Based Attendant Services and Supports Act (MiCASSA), (9) which would eliminate the "institutional bias" in the Medicaid program and require states to provide in-home personal-assistance services for people with disabilities; and other initiatives I discuss below. A major purpose of this Article is to bring these developments to the attention of the legal academic community and to make a case for treating them as central to future discussions of disability law.

But I hope to contribute to the discussion as well as start one. The turn to social welfare law is one about which disability rights advocates might understandably feel uneasy. Much of the thinking of the disability rights movement in this country developed as a reaction to the perceived paternalism and oppression that attended a welfare-based response to disability. (10) Although the disability rights critique of disability welfare programs had its roots in the broader welfare rights movement of the late 1960s and early 1970s, disability rights advocates ultimately grew a great deal more ambivalent about the very idea of welfare than did welfare rights advocates more generally. By the 1970s, many disability rights advocates were presenting antidiscrimination laws as an alternative to social welfare provision for people with disabilities--a tool that would obviate welfare programs by giving people with disabilities opportunities to make a living on their own. If it is to be true to the disability rights movement, any turn (back) to social welfare law must seek to solve the problems of paternalism and oppression that advocates identified in an earlier generation of disability welfare programs. I hope to show some of the ways that current social welfare initiatives pursued by disability rights advocates do and do not take account of these problems, and to highlight the dilemmas advocates face in relying on the social welfare system.

My argument proceeds as follows. In Part I, I provide an overview of the causes and consequences of the shift from a social welfare to an antidiscrimination approach to disability law. I begin in Section A with the arguments of disability rights activists in the 1970s and 1980s. I discuss the ways in which activists criticized welfare programs for people with disabilities and describe how their critiques evolved into an embrace of antidiscrimination as an alternative to the social welfare paradigm of disability law. The disability rights movement's argument that antidiscrimination law would move significant numbers of people with disabilities off the benefits rolls and into the workforce strongly influenced both the drafting and the passage of the ADA. As I show in Section B, however, events have not worked out as disability rights advocates hoped. The antidiscrimination paradigm, as embodied in the ADA, has failed to achieve significant improvements in employment for people with disabilities. Although commentators are hotly debating the question whether the ADA has caused a decline in disability employment, it should be clear that any positive effect of the statute has occurred at the margins. For literally millions of working-age people with disabilities--the overwhelming majority--the ADA has been entirely irrelevant to their ability to get jobs.

In Part II, I offer a reason why this is so: Antidiscrimination laws are not suited to eliminating deep-rooted structural barriers to employment. One might think that the ADA's requirement of accommodation provides a tool to attack those structural barriers. But a number of features of ADA doctrine--features that are not nearly as controversial as one might expect--operate to assimilate the accommodation requirement very closely to a nondiscrimination rule. Those features of the doctrine have made the ADA a poor mechanism for eliminating structural employment barriers. I give particular attention to the statute's (lack of) effect on access to adequate health insurance because that is, by many accounts, the most significant obstacle to entering the workforce that people with disabilities collectively face. (11)

In Part III, I point to some of the ways in which disability rights advocates have begun to (re)embrace a social welfare approach to disability law. I also try to identify some respects in which these recent developments threaten to ignore the important critiques of welfare programs offered by the disability rights movement in the 1970s, and I suggest some ways in which a renewed embrace of social welfare law might be crafted to take account of those critiques.

Before proceeding, a word about the nature of my project is in order. I make no effort in this Article to offer any deep normative justification for or critique of disability law. My basic goal is more instrumental--to assess which policy tools are most likely to achieve the objectives that the disability rights movement has itself articulated.

To describe my project in this way introduces a complication. Social movements are not unitary actors. They are collections of people who feel various affiliations and who have a variety of motivations. The goals, strategies, and ideas of a social movement are always evolving and are always contested within the movement. (12) The disability rights movement is no exception. It embraces people with a range of different disabilities, different life experiences, different material needs, and different ideological perspectives. (13) Thus, it is an oversimplification...