Amicus Curiae Brief — Board of Trustees of Univ. of Ala. v. Garrett

OF THE

United States

OCTOBER TERM, 1999

UNIVERSITY OF ALABAMA AT BIRMINGHAM

BOARD OF TRUSTEES, ¢t al.,

Petitioners,

Vv.

PATRICIA GARRETT, et al.,

Respondents.

On Writ Of Certiorari To The United States Court Of

——* For The Eleventh Circuit

BRIEF AMICUS CURIAE OF

PARALYZED VETERANS OF AMERICA,

NATIONAL ORGANIZATION ON DISABILITY,

NATIONAL MENTAL HEALTH ASSOCIATION AND

NATIONAL ALLIANCE FOR THE MENTALLY ILL

ON BEHALF OF RESPONDENTS

——oOoooooEooEoooooooeoeEEoEEooEoEoEIEoIooEEEoEaaeeeE=E=EaDnDB=qx—E_ESEeEeEeEEE=EaeaEEe—EeEeEeEeeeeEESS

Tep G. DANE EvE HILL

Counsel of Record WESTERN LAW CENTER FOR

CHARLES D. SIEGAL DISABILITY RIGHTS

MUNGER, TOLLES & 919 South Albany Street

OLSON LLP Los Angeles, CA 90015

355 South Grand Ave. (213) 736-1031

Suite 3500

Los Angeles, CA 90071

(213) 683-9100

(213) 687-3702

Counsel for Amicus Curiae

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

W2pe

TABLE OF CONTENTS

Page

I. UT be CO LEM BI oni csccrccccsescscssssccosceneccnsees l

I]. INTRODUCTION AND SUMMARY OF

I asi steiatictisiien Aeininceiouinic ni Sik hin sistas 2

Il. I hiss adhe cc sarenn en aeons aan pactcoubaninuvanciicnuoane 4

A. The Roots Of Societal Prejudice Against

Persons With Disabilities .....................:cceeeeeee 4

1. Negative Stereotyping.....................00 5

2 I cheecictainastesticaisncinscnessacioecaniaes 8

3. Psychological Discomfort................... 13

4 Paternalization and Pity ...................... 15

B. The Pernicious Nature of Prejudice

Against Persons With Disabilities.................... 17

oo TRO EEABOCES GT PURFIGIOS .........00ccccocrcecccessesnceee 19

1. RN iti pceasuinsioniinapioaies 19

2. PN HOU ois csiccssccesesrevinbsaevnnes 23

3 NINN. 50s inccuenisicctaneseeadecclermennaeas 26

IV. SIE ssahcencachazsinssiscosetinneucninstnenicenaisauiaiobinenss 28

TABLE OF AUTHORITIES

CASES

San Antonio Indep. School Dist. v. Rodriguez, 411

U.S. 1 (1973)......ccccsorossssccocovosccsscrsssersonsosensocoosossseses

School Board of Nassau County v. Arline, 480 U.S.

273 (1987) ...csciscsscsorevsessasessnsessvsnsoeesorssessorsnseosnesseee

STATUTES

42 U.S.C. § 12102(2)(A) (1995)..........ecsscesreeresereees

LEGAL MATERIALS

117 Cong. Rec 45974 (1971) .......sesssseseesseseseeseenenes

Senate Comm’n on Labor and Human

Resources, Report on The Americans With

Disabilities Act of 1989, S. Rep. No. 116

OTHER AUTHORITIES

Advisory Comm’n on Intergovernmental

Relations, Disability Rights Mandates:

Federal and State Compliance with

Employment Protections and Architectural

Barrier Removal (1989) ............:cccscecesseeeeeeseeeeees

Affleck, Glenn G., Physicians’ Attitudes Toward

Discretionary Medical Treatment of Down's

Syndrome Infants, 18 Mental Retardation 79

Airline Workers Manhandle, Abuse Handicapped

Passenger, L.A. Times, Jan. 15, 1989.........-:0:+++++

Aussell, Marta, Beyond Ramps: Disability at the

End of the Social Contract (1998) ......+-.--++s:ssssserees

Page(s)

gy eae OURS Ys

TABLE OF AUTHORITIES

(continued)

Page

Bard, Bernard & Joseph Fletcher, The Right to

Die, The Atlantic, Apr. 1966...........cccssesccsrcssessrcesesasesesess 25

Bogdan, Robert et al., The Disabled: Media’s

Monster, Soc. Pol’y, Fall 1982, at 32............sssssessesseereees 10

Bowe, Frank, Handicapping America: Barriers to

NN sd. nrsiaisncn snk entticeemnesstaiccncsanscsonssniee 30

Brown, Rupert, Prejudice: Its Social Psychology

Ta cRdli i dectciatl sehloatdiignshirseasninsedbenmahsmeeseesesneunenhieonasesen 2

California Dep’t of Justice, Attorney General’s

Comm'n on Disability, Final Report (1989)........ 22, 29, 30

Davis, Fred, Deviance Disavowal: The

Management of Strained Interaction by the

Visibly Handicapped, 9 Soc. Probs. 120 (1961) ................+. 13

Eisenberg, M.G. & C.C. Saltz, Quality of Life

Among Spinal Cord Injured Persons: Long

Term Rehabilitation Outcomes, 29 Paraplegia

De riticasibidaiinsnalinntnadpnimniiinendioonsingatiimesscssusevensesee 23

Eisenberg, Myron G., Disability as Stigma, in

Disabled People as Second-Class Citizens 3

(Myron G. Eisenberg et al. eds., 1982)............::sesseeeeseees 6

Eliner, Jack R. & Henry E. Bender, Hiring The

Handicapped: An AMA Research Study (1980) ............:00++++ 5

Endres, Jo E., Fear of Death and Attitudinal

Dispositions Toward Physical Disability, 39

Dissertation Abstracts Int’] 7161A (1979)...............::eee 14

Field, Sharon et al., Effects of Disability Labels on

Teachers’ Perceptions of Students’ Self-

Determination, 75 Perceptual & Motor Skills

eT ii cliteacsinenecigmenisibbieeeblagtaidoipnesedvenmntbiinsenvoene 27

Fletcher, Joseph, Indicators of Humanhood: A

TABLE OF AUTHORITIES

(continued)

Fraser, Mary E., Educating the Public About

Mental Illness: What Will it Take to Get the Job

Done, Innovations & Res., Issue 3, 1994..000.........ccceceeeeees 11

Gerbner, George, Dreams That Hurt: Mental

Illness in the Mass Media, Proc. First Int’]

Rosalynn Carter Symp. on Mental Health

UE Oe Ra SINE RII cxthiciccebuctetiennsnsicencsnncitnnsiesshanes 11

Gething, Lindsay, Judgments by Heaith

Professionals of Personal Characteristics of

People with a Visible Physical Disability, 34 Soc.

es Oe riiiniisiecesiepninitahndlinsnistcdionsiclnseidgicteniian 23

Gibson, David & Gerrit Groeneweg, Employer

Receptivity to the Developmentally

Handicapped: When “Yes” Means “No,”

Canada’s Mental Health 12, June 1986......0...0000000.ccee 19

Gill, Carol J., Health Professionals, Disability, and

Assisted Suicide: An Examination of Relevant

Empirical Evidence, J. Psychol., Pub. Pol’y &

Sis SOI Fa iiissicticcsnentvngsiilocssnitionseesuitinticsknitit 23, 24

Gliedman, John & William Roth, The

Unexpected Minority: Handicapped Children in

FE CT ee 8, 14, 18, 23

Goffman, Erving, Stigma: Notes on the

Management of Spoiled Identity (1963) ............:.:eccecssseeeeees 8

Gouvier, Wm. Drew et al., Verbal Interactions

with Individuals Presenting with and without

Physical Disability 39 Rehabilitation Psychol.

ED innivisnsitlincihsiiliiiagieliad Tap aiiiiaileiinysinaaniaaice 7 |

Gowman, Alan G., The War Blind in American |

NE FOIE IE Pisin Siac itnciaes ihpaib atte ncthocnenl 7 |

Gross, Richard H. et al., Early Management and |

Decision Making for the Treatment of ;

Myelomeningocele, 72 Pediatrics 450 (1983) ...............000+ 26 |

-iV-

TABLE OF AUTHORITIES

(continued)

Grossman, Herbert, Special Education in a

Diverse Society: Improving Services for

Minority and Working-Class Students,

Preventing School Failure, Fall 1991, at 19............

Hahn, Harlan, Disability and Rehabilitation

Policy: Is Paternalistic Neglect Really Benign?

42 Pub. Admin. Rev. 385 (1982) .0..0.....cccccecseccsscsoees

Hahn, Harlan, Paternalism and Public Policy,

Soc’y, Mar.-Apr. 1983, at 36 ooo... ..ccccccecccssessseseeseese.

Hansson, Robert O. & Beverly J. Duffield,

Physical Attractiveness and the Attribution of

Epilepsy, 99 J. Soc. Psychol. 233 (1976) .esccsc.e0e00e-.-..

Henderson, George & Willie V. Bryan,

Psychological Aspects of Disability (1984)...00000000..0..

Holmes, Gary E. & Ronald H. Karst, The

Institutionalization of Disability Myths: Impact

on Vocational Rehabilitation Services, J.

Rehabilitation, Jan.-Mar. 1990, at 20.......................

Howard, George, The Ex-Mental Patient as an

Employee: An On-the-Job Evaluation, 45 Am. J.

Orthopsychiatry 479 (1975) .......ccccccsessecsessecssesseceses

Kantrowitz, Barbara, Verdict After a Day of

Horror, Newsweek, Mar. 29, 1993...........................

Katz, Irwin et al., Attitudinal Ambivalence and

Behavior Toward People with Disabilities, in

Attitudes Toward Persons with Disabilities

(Harold E. Yuker ed., 1988) 0.0.0... cccccccccccesecccceceeees

Kelley, Harold H. et al., Some Implications of

Social Psychological Theory for Research on the

Handicapped, in Psychological Research and

Rehabilitation 172 (Lloyd H. Lofquist ed.,

Page

TABLE OF AUTHORITIES

(continued)

Kleck, Robert et al., The Effects of Physical

Deviance Upon Face-To-Face Interaction, 19

Hum. Rel. 425 (1966)............:ssscsssesseesseesseeseesnesereseesenseees 13

Kleck, Robert, Physical Stigma and Nonverbal

Cues Emitted in Face-To-Face Interaction, 21

Hum. Rel. 19 (1968)............:sscsscessessesseseceesenseessssnsesesenenes 13

Kleck, Robert, Physical Stigma and Task Oriented

Interactions, 22 Hum. Rel. 53 (1969)............:scessseeseeeeeees 13

Kong, Dolores, Widespread Misperception on

Mental Illness, Boston Globe, Oct. 1, 1997 ..........::+ses0002 11

Kuhse, Helga & Peter Singer, preface to Should

the Baby Live? The Problem of Handicapped

Infants (Peter Singer ed.., 1985) ...........s-ssssesseesseneeneenreneees 25

Lewis, Jerry, If 1 Had Muscular Dystrophy,

Parade, Sept. 2, 1990, at 4.........:ceeseeeeessnsesessesesesensesenenens 2

Liesener, James J. & Judson Mills, An

Experimental Study of Disability Spread:

Talking to an Adult in a Wheelchair Like a

Child, 29 J. Applied Soc. Psychol. 2083 (1999) .........-.:.++++ 7

Link, Bruce G. et al., The Social Rejection of

Former Mental Patients: Understanding Why

Labels Matter 92 Am. J. Soc. 1461 (1987)........-:sssesseseseeees 7

Livneh, Hanoch, Death Attitudes and Their

Relationship to Perceptions of Physically

Disabled Persons, J. Rehabilitation, Jan.-Mar.

Longmore, Paul K., Screening Stereotypes:

Images of Disabled People, Soc. Pol’y, Summer

DDB ncncnecnncasnsovsnsecnsenssensstvoccnbeosboutstassonvbesansnsssncsbsassocesascboss 10

Louis Harris & Assoc., The 2000

N.O.D./Harris Survey of Americans with

Disabilities (Aug. 9, 2000)..........-.-.:sssssseseseseseneneees 19, 20, 28

TABLE OF AUTHORITIES

(continued)

Page

Louis Harris & Assocs., The ICD Survey II:

Employing Disabled Americans (1987)..............::0css0008 21

Maras, Pam, The Integration of Children with

Disabilities into the Mainstream (1993) ..............:cccccceeeeeeeeees 2

Margolis, Howard & Arthur Shapiro,

Countering Negative Images of Disability in

Classical Literature, Eng. J., Mar. 1987, at 18 ................000+ 9

Mazower, Mark, Dark Continent (1998).................c00cecceeee0s 12

Monahan, John, Mental Disorder and Violent

Behavior: Perceptions and Evidence, 47 Am.

Fs Heme aN spiel dinaiccsliitchinialicinaecintnnenasiiailenselenbiicretes 7

National Council on the Handicapped,

Toward Independence, A Report to the

President and to the Congress of the United

Se thi ccnlesiicasisdasihicsnihitinsiantelbenichiticidiehdpnnaneipntteinenaiinis 20

National Mental Health Association, Stigma

Matters: Assessing the Media’s Impact on

Public Perception of Mental Illness (2000)..................0. 10

National Organization on Disability, Louis

Harris & Assoc., Public Attitudes Toward

People with Disabilities (1991) 0.0.0.0... ceeeeeeeeeeeeees 15

Nelson, Jack A., Broken Images: Portrayals of

Those with Disabilities in American Media, in

The Disabled, the Media, and the Information

Age 1 (Jack A. Nelson ed, 1994)...............0.ccsrcsssosscssscorees 10

Norden, Martin F., The Cinema of Isolation: A

History of Physical Disability in the Movies

GOED sini eindiehsdinnhsditniieintsgseneniiapaianenipidininateabnensigestinnnst’ 11

Novak, David W. & Melvin J. Lerner, Rejection

as a Consequence of Perceived Similarity, 9 J.

Personality & Soc. Psychol. 147 (1968)..............:.sccssseseee 14

-vii-

TABLE OF AUTHORITIES

(continued)

Oppenheimer, Kim C. & Max D. Miller,

Stereotypic Views of Medical Educators Towards

Students with a History of Psychological

Counseling, 35 J. Counseling Psychol. 311

Parent, Wendy S. & Jane M. Everson,

Competencies of Disabled Workers in Industry:

A Review of Business Literature, J.

Rehabilitation, Oct.-Dec. 1986, at 16 ..........:.secssseseseeeesees 21

Parish, Thomas S. et al., Normal and Exceptional

Children’s Attitudes Toward Themselves and

One Another, 104 J. Psychol. 249 (1980) ..........:.:scssseseeeeees 27

Pati, Gopal C., Countdown on Hiring the

Handicapped, 57 Personnel J. 144 (1978) ...........cseseeeeseees 20

Phillips, Marilynn J., Damaged Goods: Oral .

Narratives of the Experience of Disability in

American Culture, 30 Soc. Sci. & Med. 849

Report of a United Nations Expert Group Meeting

on Barrier Free Design, 26 Int’] Rehabilitation

ROY. 3B IGT. seviccccenssssscieceinnsnscssstoniscnieningssnesatevenevecniveessoson 29

Rickham, Peter Paul, The Ethics of Surgery in

Newborn Infants, 8 Clinical Pediatrics 251

Robertson, John A., Involuntary Euthanasia of

Defective Newborns: A Legal Analysis, 27 Stan.

L. Rev. 213 (R979): ccncecevenassssincrsecsconacscssesestetessesoneesconssossstos 25

Robertson, John A., Legal Aspects of Withholding

Medical Treatment from Handicapped Children,

in Legal And Ethical Aspects of Treating

Critically and Terminally Ill Patients 213 (A.

Edward Doudera & J. Douglas Peters eds.,

TABLE OF AUTHORITIES

(continued)

Page

Rogers, B., Richard III: Shakespeare Was Quite

PUPCIRS, Fo Mi I BE CIDP ciccccncorinsrensccesnstniiinnnnntncwondsnass 9

Ross, Charles, Richard II] 139 (1981)............::sscssssssssessseseeeees 9

Roush, Susan E., Health Professionals as

Contributors to Attitudes Toward Persons With

Disabilities, 66 Physical Therapy 1551 (1986) ...................- 9

Safilios-Rothschild, Constantina, The Sociology

and Social Psychology of Disabilityand

I ei ciratitnenisnsectenntansncnnstvinncanninonssans 6, 7,15

Scotch, Richard H., From Good Will to Civil

Rights: Transforming Federal Disability

FE TE isuicheicsneahbeianiapinibiaeiiiiniiedinbitceneesssseiaantennbotn 29

Shapiro, Joseph P., No Pity: People with

Disabilities Forging a New Civil Rights

PI EE einen ssdcnmntipictapdincniaciennsand 2, 8, 16, 17, 25, 28

Shaw, A., Defining the Quality of Life, Hastings

Se I II sensiclaccssihiecirinsesnnsniegibiiptiadaensenstiiesiimmmimnaisini 26

Shea, Thomas M. & Anne M. Bauer, Learners

with Disabilities: A Social Systems Perspective

of Special Education (Sue Pulvermacher-Alt et

Snyder, Melvin L. et al., Avoidance of the

Handicapped: An Attributional Ambiguity

Analysis, 37 J. Personality & Soc. Psychol.

Ne CT i ntticdettsscormnnsrhicstetionmiatineniditonmemmncdnnsenbadines 15

Stevens, George E., Exploding the Myths About

Hiring the Handicapped, Personnel, Dec. 1986,

Stone, Christopher |. & Birgit Sawatzki, Hiring

Bias and the Disabled Interviewee: Effects of

Manipulating Work History and Disability

Information of the Disabled Job Applicant, 16 J.

Vocational Behav. 96 (1980) .................:sscccccssssserecesssceeees 22

ix-

TABLE OF AUTHORITIES

(continued)

Page

Straus, Robert, Social Change and the

Rehabilitation Concept, in Sociology and

Rehabilitation 1 (Marvin B. Sussman ed.,

1965) ........ceccccscssssesscsesessorsssesserenesseossnsssessnsseccsosenssseacssensees 17

Stroman, Duane F., The Awakening Minorities:

The Physically Handicapped (1982). .........-s-sssssssseessnerssenesees 6

Taylor, R. et al., The Effects of Labels and

Assigned Attributes on Teacher Perceptions of

Academic and Social Behavior, 18 Educ. &

Training Mentally Retarded 45 (1983)............::s:ssssse 27

Thurer, Shari, Disability and Monstrosity: A Look

at Literary Distortions of Handicapping

Conditions, 41 Rehabilitation Literature 12

Tombari, Henry A., Lending a Hand to the

Handicapped: A Primer for Business, Advanced

Mgmt. J., Autumn 1979...........eececesesesssnesereneneneneneneneneees 21

U. S. Comm'n on Civil Rights,

Accommodating the Spectrum of Individual

Abilities (1983)...........sccscsssecsessosscsscsrsessorssessnssevesesceosess 4, 26

U.S. Civil Service Comm'n, A Chain of

Cooperation: Severely Physically

Handicapped Employees in the Federal

Gorvice (3976).....0...scerresservesessevees pciaakaiaieuicatneorendeidnediwaashiceen 20

U.S. Dep’t of Labor, Bull. No. 234, Workmen’s

Compensation and the Physically

Handicapped Worker (1961)..............:ss:ssssssesesenssenenenenens 20

U.S. Dep’t. of Labor, Bull. No. 923, The

Performance of Physically Impaired

Workers in Manufacturing Industries (1948)................. 20

U.S. Public Health Service, Dep’t of Health &

Human Services, Mental Health: A Report

of The Surgeon General (1999)...........:s:sssssssssesnenenensenenes 12

-X-

TABLE OF AUTHORITIES

(continued)

Urban Institute, Report of the Comprehensive

NRE TIE Fy Ci ieeiectnciintcrnrssicnstnenonsnncinmaneienenn 21

Wahl, Otto F. & Rachel Roth, Television Images

of Mental Illness: Results of a Metropolitan

Washington Media Watch, 26 J. Broadcasting

I seca eect cscs crests taciderincalassiossnlassinenndeninnledceinibon 11

Weinberg, Nancy & Carol Sebian, The Bible and

Disability, 23 Rehabilitation Counseling Bull.

Sa a I arta hci cade ecebulddinsadpaicancahtoncennacnn 9

Weinberg, Nancy, Another Perspective: Attitudes

of Persons with Disabilities, in Attitudes Toward

Persons with Disabilities 141 (Harold E Yuker

Wolraich, Mark L. et al., Pediatricans’

Perceptions of Mentally Retarded Individuals, 80

i STEEN LEAR OTE 24

Wright, Beatrice A., Physical Disability: A

~ Psychological Approach (Kathy Robinson &

Eleanor Castellano eds., 2d ed. 1983) .........c.ccccsessesceseeeesees 7

Yuker, Harold E., Variables that Influence

Attitudes Toward People with Disabilities:

Conclusions from the Data, in Psychosocial

Perspectives on Disability 3 (Dana S. Dunn ed.,

I.

INTERESTS OF THE AMICI

The Paralyzed Veterans of America (“PVA”) is a

Congressionally chartered non-profit veterans service

organization whose members are honorably discharged

veterans of military service with spinal cord injury or

dysfunction.’ PVA has advocated for civil rights and equal

opportunities for people with disabilities since its inception

in 1947. PVA members, virtually all of whom use

wheelchairs, are active citizens with a significant interest in

full and equal access to state programs and services.

The National Organization on Disability (“N.O.D.”)

promotes the full and equal participation of America's 54

million men, women and children with disabilities in all

aspects of life. N.O.D. was founded in 1982 at the

conclusion of the United Nations International Year of

Disabled Persons. Funded entirely by private sector

contributions, N.O.D. is the only national disability network

organization concerned with all disabilities, all age groups

and all disability issues.

The National Mental Health Association, is a

national organization with over 330 affiliates dedicated to

promoting mental health, preventing mental disorders, and

achieving victory over mental illness, as well as respect,

dignity, and opportunities for persons with disabilities.

The National Alliance for the Mentally Ill, with more

than 200,000 members and 1,200 state and local affiliates, is

the nation's leading grassroots advocacy organization

dedicated exclusively to improving the lives of persons with

severe mental illnesses, including schizophrenia, bipolar

disorder (manic-depressive illness), major depression,

obsessive-compulsive disorder, and severe anxiety

1 This brief was written entirely by counsel for amici, and no counsel for

any party had any role in authoring this brief. No monetary contributions

were made by any outside parties to the preparation or submission of this

brief. All parties have given written consent to the filing of this brief.

disorders.

II.

INTRODUCTION AND SUMMARY OF ARGUMENT

A little girl looks at photographs of children spread

out in front of her and divides them into three piles:

“They're girls, they're boys and they're handicaps.”? A

disability rights activist dressed in a business suit sits in a

wheelchair at the airport awaiting her flight, while another

businesswoman walks up and drops a quarter in her coffee

cup. A 17-year old mentally retarded girl has a baseball bat

and a broom handle brutally rammed into her vagina by

four high school football players in the affluent suburb of

Glen Ridge, New Jersey, while nearly a dozen other

students watch on and do nothing to stop it. A 66-year old

double amputee, perched atop a baggage cart “like a sack of

potatoes,” is wheeled onto a plane and left there for 45

minutes by airline personnel while other passengers stare at

him; an airline representative then tells his daughter, “Tf he’s

that sick, he shouldn’t be on a plane; he should be in a

hospital.”5 Jerry Lewis, the long-time host of the Muscular

Dystrophy Telethon, writes in a national magazine in 1990

that he would only be “half a person” if he had the disease.°

Those are not isolated or antiquated anecdotes

drawn from the far outreaches of American society; they

exemplify mainstream culture, and vividly illustrate that

broad prejudices against persons with disabilities survive at

the threshold of the new millennium. Voluminous scientific

2 Rupert Brown, Prejudice: Its Social Psychology 119 (1995), quoting Pam

Maras, The Integration of Children with Disabilities into the Mainstream 140

(1993) (unpub. Ph.D. thesis, University of Kent (Canterbury, UK)).

3 Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil

Rights Movement 19 (1994).

4 Barbara Kantrowitz, Verdict After a Day of Horror, Newsweek, Mar. 29,

1993, at 27.

5 Airline Workers Manhandle, Abuse Handicapped Passenger, L.A. Times,

Jan. 15, 1989, at 3.

6 Jerry Lewis, If 1 Had Muscular Dystrophy, Parade, Sept. 2, 1990, at 4, 5.

2

research shows that those prejudices, infecting both the

public and private sectors of American society, determine

the way “non-disabled” people view and act toward people

with disabilities.

Many persons, however, still fail to recognize the

pervasive and damaging nature of disability prejudice.

Accordingly, in support of Respondents Ash and Garrett,

amici respectfully submit this brief: (i) to examine the deep-

seated psychological and sociological mechanisms that give

rise to prejudice against persons with disabilities; and (ii) to

demonstrate some of the ways in which those prejudices

have had tangible and substantial adverse impacts on the

lives of persons with disabilities.

The Americans with Disabilities Act’s (“ADA”)

legislative history demonstrates the fact of discrimination

against persons with disabilities - by both public and

private actors. Persons with disabilities have been subjected

to a long history of “purposeful unequal treatment”’ in

areas such as employment, marital and procreational rights,

residency, education and health care. Some of the more

extreme forms of discrimination - such as the mandatory

sterilization and institutionalization laws enacted in the

name of “scientific progress” at the height of the eugenics

movement - now stand exposed as lamentable artifacts of

irrational prejudices. Significant discrimination persists,

however, often concealed beneath the same facade of

rationality that camouflaged the blatant rights violations of

the early 20th Century.

Responding to that continuing discrimination,

Congress enacted the ADA. It relied upon a body of

psychological and sociological research showing that a

number of mechanisms cause people, consciously or

unconsciously, to form negative attitudes toward persons

with disabilities, based not upon verifiably different

7 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).

3

abilities, but upon myth. Congress further understood that

those who discriminate against persons with disabilities

often characterize their conduct as an appropriate response

to the very condition conferring minority status (i.e., the

individual's functional impairment). Accordingly, it

required that adverse conduct against qualified persons

with disabilities - whether committed by public or private

actors - be shown to be based upon actual differences,

rather than mere prejudices.

The psychological and sociological literature

demonstrates that Congress's application of the ADA to the

states was not only rational, but necessary. The concepts of

“handicap” and “disability” do not exist in vacuuo; the

significance of those labels derives from a person's physical

and social environment. All Americans, including state

actors, build and form that environment. All Americans,

including state actors, are subject to the sociological

mechanisms discussed herein, are susceptible to prejudicial

attitudes, and are members of the society inhabited by

persons with disabilities. Legislation intended to remedy

and deter broad societal discrimination against persons with

disabilities, therefore, necessarily must apply broadly to all

American individuals and institutions, including the states.

iil.

ARGUMENT

A. The Roots Of Societal Prejudice Against

Persons With Disabilities

It is recognized in the fields of sociology and

psychology that a variety of psychological and sociological

mechanisms - including stereotyping, stigmatization,

psychological discomfort, and paternalization - cause

unimpaired individuals to hold prejudices against persons

with disabilities. As shown below, while some or all of

8 U. S. Comm'n on Civil Rights, Accommodating the Spectrum of

Individual Abilities 17, 25 (1983) (hereinafter “Accommodating the

Spectrum”).

these mechanisms also contribute to discrimination against

other minority groups, their operation in the context of

disability has unique characteristics that make disability

prejudice extremely difficult to identify and eradicate.

1. Negative Stereotyping

Stereotyping - the belief that most or all members of

a particular group share certain negative characteristics -

underlies prejudice against persons with disabilities as well

as racial, religious, ethnic and gender discrimination.

However, while stereotyping of other minorities has become

less acceptable since passage of the civil rights legislation of

the 1960’s and 1970's, stereotypes of persons with

disabilities remain prevalent. For example, although few

employers today likely would articulate a view that

members of certain racial or ethnic minorities are not

intelligent enough to hold some jobs, many freely express

the view that people with disabilities display inordinate

absenteeism, even though this stereotype has been

thoroughly refuted by the empirical data.’

The persistence of disability stereotypes is

attributable to the fact that, in contrast to race and ethnicity,

which are generally recognized to bear no relation to an

individual's abilities, the mere fact of having a disability is

still believed to convey important information about a

person’s potential and limitations beyond the particular

disability itself.

Of course, the existence of a disability is not wholly

irrelevant to a person’s capabilities. Any disability

constitutes an impairment that imposes certain burdens and

9 See, e.g., Jack R. Eliner & Henry E. Bender, Hiring The Handicapped: An

AMA Research Study 46 (1980) (“ Absenteeism is mistakenly assumed to be

higher among handicapped employees”); George E. Stevens, Exploding the

Myths About Hiring the Handicapped, Personnel, Dec. 1986, at 57, 58-60;

(debunking various myths about employment performance of persons

with disabilities, including claims of excessive absenteeism).

5

restrictions on an_ individual's life activities..° The

perception of disabilities as negative limitations, however,

often irrationally leads to negative attitudes towards those

persons who have them, because “[p]eople tend to think in

terms of a handicapped person rather than a person who is

handicapped. It is imagined or perceived that [the

disability] is the central life experience of that person and

influences all his other mental and social abilities.”

For many people, the myriad characteristics by

which one judges a non-disabled person - integrity,

responsibility, sense of humor, amiability, sensitivity, to

name just a few - suddenly recede into the background

when the person has a disability. Instead, a single attribute

comes to the fore: “an uncommon characteristic is chosen as

the most significant feature. This deviant characteristic

becomes the focus of attention, and most reactions can then

be phrased in terms of that single feature.”

When a person’s entire being is thus reduced to what

is perceived to be a negative characteristic - her physical or

mental impairment - attitudes about the individual's

capabilities in other areas also tend to become negative.

This effect has been described as the “ spread” phenomenon.

[t]he nondisabled tend to create consistently

and on the whole usually negative

10 See 42 U.S.C. § 12102(2)(A) (1995) (defining “ disability” for purposes of

the ADA as a physical or mental impairment that substantially limits one

or more major life activities).

11 Duane F. Stroman, The Awakening Minorities: The Physically Handicapped

52 (1982) (emphasis added).

12, Myron G. Eisenberg, Disability as Stigma, in Disabled People as Second-

Class Citizens 3, 5 (Myron G. Eisenberg et al. eds., 1982); see also

Constantina Safilios-Rothschild, The Sociology and Social Psychology of

Disability and Rehabilitation 111 (1970) (“most of the time the disabled are

discriminated against by the nondisabled because the assessment stops at

the recognition of the presence of the disability. This process of

stereotyping and using stereotypes as guidelines for behavior simplifies

interaction for the nondisabled when they encounter disabled persons,

but often leads to the unjust treatment of the latter”).

6

a ata ics wa i is i is aS a a

impressions about the disabled person, who

is then necessarily viewed as inferior in terms

of all possible attributes simply on the basis

of his visible or known but nonvisible

disability.

A number of empirical studies have demonstrated

“spread” at work in influencing the attitudes of the

unimpaired toward persons with disabilities. People

mistakenly link epilepsy to physical unattractiveness.’*

They shout at the blind as if they are deaf and try to lift

them as if they are orthopedically disabled.5 They

erroneously assume that persons with physical disabilities

are mentally impaired,’ and that persons with psychiatric

conditions are violent..7 They speak to persons with

physical disabilities as if they were children.* In short,

merely from knowledge of the existence of one impairment,

13, Safilios-Rothschild, supra, at 123; see also Beatrice A. Wright, Physical

Disability: A Psychological Approach 32-39 (Kathy Robinson & Eleanor

Castellano eds., 2d ed. 1983) (discussing “spread” phenomenon).

4 Robert O. Hansson & Beverly J. Duffield, Physical Attractiveness and the

Attribution of Epilepsy, 99 J. Soc. Psychol. 233, 233-40 (1976).

15 Alan G. Gowman, The War Blind in American Social Structure 198 (1957).

16 Wright, supra, at 35.

17 Compare, e.g., Bruce G. Link et al., The Social Rejection of Former Mental

Patients: Understanding Why Labels Matter, 92 Am. J. Soc. 1461, 1494 (1987)

(in study examining the effects of labeling individuals as having been

previously hospitalized for mental illness, evidence indicated “that a

meaningful segment of the public sees former patients as dangerous and

expresses a reluctance to interact with them”) with John Monahan, Mental

Disorder and Violent Behavior: Perceptions and Evidence, 47 Am. Psychol. 511,

519 (1992) (concluding, upon review of relevant literature, that “[mJental

health status makes at best a trivial contribution to the overall level of

violence in society”).

18 James J. Liesener & Judson Mills, An Experimental Study of Disability

Spread: Talking to an Adult in a Wheelchair Like a Child, 29 J. Applied Soc.

Psychol. 2083, 2090-92 (1999); see also Wm. Drew Gouvier et al., Verbal

Interactions with Individuals Presenting with and without Physical Disability

39 Rehabilitation Psychol. 263-68 (1994) (individuals asked directions by

persons with disabilities responded with simple language more

appropriate to interactions with children).

7

many people form negative attitudes about other unrelated

characteristics of persons with disabilities.’

2. Stigmatization

Disability also carries the taint of social stigma. As

the sociologist Erving Goffman noted in his seminal work,

the process of stigmatization reduces those so classified to

non-human status:

The attitudes we normals have toward a

person with a stigma, and the actions we take

in regard to him, are well known, since these

responses are what benevolent social action is

designed to soften and ameliorate. By

definition, of course, we believe the person

with a stigma is not quite human.”

Stigmatization is a common ingredient of most

brands of prejudice. However, persons with disabilities

have arguably been subjected to more severe historical

stigmatization than other minorities.

Deviance from physical or mental norms has long

been linked with deviance from moral norms. The Bible

begins with the tale of Cain’s being physically “marked” as

punishment for killing Abel, and continues with numerous

other stories associating disability and disfigurement with

sin.2}

19 Stereotyping places persons with disabilities in a Catch-22 situation.

Stereotypical attitudes lead to their being segregated from the rest of

society, and that segregation, in turn, is used as confirmation of the truth

of the stereotypes. “The able-bodied person sees that handicapped

people rarely hold good jobs, become culture heroes, or are visible

members of the community and concludes that this is ‘proof’ that they

cannot hold their own in society.” John Gliedman & William Roth, The

Unexpected Minority: Handicapped Children in America 22 (1980).

2 Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 5

(1963).

21 See Shapiro, supra, at 30 (“In the Old Testament, being blind, lame,

deaf, crippled, sick, or diseased is a sign of having done something to

incur God’s disfavor. Disability is brought on by sin. In the New

f

weet ncn CAE SE SNA ES SA OTRO

Similar associations permeate secular Western

literature, in which “bodily intactness and glowing health

[have been] almost exclusively characteristics of the good

and noble, while physical infirmities are reserved for the

evil and malevolent.”2 We grow up hearing tales of

disabled and wicked characters such as Rumpelstiltskin,

Captain Hook, Long John Silver, or the dwarves, giants and

gnomes in the Brothers Grimm fairy tales.> In adult

literature, the common literary device of “the twisted mind

in the twisted body,” appears in as exalted a writer as

Shakespeare, who depicted Richard III as a hunchback in

order to provide a physical embodiment of his supposedly

warped soul.% Captain Ahab’s body-length scar and

wooden leg serve as convenient metaphors for his

traumatized and monomaniacal character in Moby Dick.

The 20th Century’s patina of technology did not

erase the linkage between sin and disability.

Many of the ancient myths and stereotypes of

people with disabilities still exist. Although

few persons currently subscribe to

abandoning or killing people with

disabilities, many do associate disabilities

with sin and the Devil. They either

Testament, people with disabilities are cursed or possessed by evil.”);

Nancy Weinberg & Carol Sebian, The Bible and Disability, 23 Rehabilitation

Counseling Bull. 273, 273-81 (1980) (reviewing associations of disability

and sin in both Old and New Testaments).

2 Shari Thurer, Disability and Monstrosity: A Look at Literary Distortions of

Handicapping Conditions, 41 Rehabilitation Literature 12, 12 (1980).

23 See Susan E. Roush, Health Professionals as Contributors to Attitudes

Toward Persons With Disabilities, 66 Physical Therapy 1551, 1552 (1986) (“A

collection of pictures taken from fairy tales and other children’s stories

reveals the connection between disability and evil as overwhelming.”).

2 Howard Margolis & Arthur Shapiro, Countering Negative Images of

Disability in Classical Literature, Eng. J., Mar. 1987, at 18, 19. In fact,

Richard III most likely had no disability. Id. citing B. Rogers, Richard III:

Shakespeare Was Quite Wrong, 33 In Britain 31-35 (1978); see also Charles

Ross, Richard III 139 (1981) (“[t]here is no reliable evidence for the popular

Tudor idea that [Richard] was hunchbacked”).

9

consciously or subconsciously think that

disability is a synonym of bad. More often

than not, able-bodied is associated with good,

i.e., Christ and the angels, cleanliness, and

virtue.

In contrast to the past when priests, rabbis, shamans

and storytellers popularized the link between disability and

sin, the contemporary purveyors of disability stigma are

most commonly the news and entertainment media. In

newspapers, magazines, books, plays, films and television

programs, persons with disabilities “are often portrayed as

evil, or as pitiable victims doomed to an unsatisfying life, or

in an array of other roles that in the main tend to strengthen

prejudices, fear, and loathing among audiences.”

Examples abound. In the 1960's, movie audiences

watched the metal-handed Dr. No try to kill James Bond, the

ideal physical specimen; those who stayed at home got to

see a “hunchbacked dwarf,” Migelito Loveless, try to kill

dashing Jim West of The Wild, Wild West, because he had

grown “weary of the sight of [his] strong, straight body.””

The prosthetic-armed, wheelchair-confined Dr. Strangelove

2 George Henderson & Willie V. Bryan, Psychological Aspects of Disability

8 (1984) (emphases in original).

2% Jack A. Nelson, Broken Images: Portrayals of Those with Disabilities in

American Media, in The Disabted, the Media, and the Information Age 1, 1 (Jack

A. Nelson ed., 1994); Paul K. Longmore, Screening Stereotypes: Images of

Disabled People, Soc. Pol'y, Summer 1985, at 31, 33 (media depictions

express “the notion that disability involves the loss of an essential part of

one’s humanity”); Robert Bogdan et al., The Disabled: Media’s Monster, Soc.

Pol'y, Fall 1982, at 32, 32 (“By linking ugliness and physical and mental

differences with murder, terror, and violence, the media creates, at the

same time as it perpetuates, society's prejudices - prejudices that result in

fear of the handicapped and, ultimately, in their systematic, intentional

exclusion from society.”); National Mental Health Association, Stigma

Matters: Assessing the Media’s Impact on Public Perception of Mental

Illness 24-25 (2000) (approximately half of survey respondents reported

“often” seeing persons with mental illness portrayed in the media as

addicts or criminals).

27 Longmore, supra, at 32.

10

was a madman who preached lovingly about “the bomb.”

The “one-armed” man - not identifiable by any other

attribute - was the real killer of Dr. Kimble’s wife in The

Fugitive. More recently, in the original Star Wars trilogy,

Darth Vader, a murderous supervillain, spoke through a

respirator.

As Martin Norden observed in his exhaustive study

of the cinematic portrayals of persons with physical

disabilities, these characterizations and others too numerous

to mention “enhance[] the disabled characters’ isolation and

‘Otherness’ by reducing them to objectifications of pity, fear,

scorn, etc. - in short, objects of spectacle - . . . and [foster] a

sense of isolation and self-loathing among audience

members with disabilities.”%

Nor are such attitudes limited to physical

disabilities. Several studies have reported the widespread

negative portrayals of persons with mental disabilities in the

media.” A recent survey indicated that 40% of adults

believe mental illness to be caused by character flaws and

personality defects.° A slew of comedies in the past five

% Martin F. Norden, The Cinema of Isolation: A History of Physical Disability

in the Movies 2 (1994).

29 See, e.g., Otto F. Wahl & Rachel Roth, Television Images of Mental Illness:

Results of a Metropolitan Washington Media Watch, 26 J. Broadcasting 599,

603-04 (1982) (in month of prime time television programming, majority

of mentally ill characters were depicted as “aggressive,” “confused,” and

lacking social connections; many were also portrayed as “dangerous” and

“unpredictable”); George Gerbner, Dreams That Hurt: Mental Illness in the

Mass Media, Proc. First Int'l Rosalynn Carter Symp. on Mental Health

Pol’y 8, 11 (1985) (more than 70 percent in

prime-time drama and two-thirds of characters with mental illnesses

daytime soap operas are depicted as violent).

3% Dolores Kong, Widespread Misperception on Mental Illness, Boston Globe,

. Oct. 1, 1997, at B1; Mary E. Fraser, Educating the Public About Mental

; Illness: What Will it Take to Get the Job Done, Innovations & Res., Issue 3,

t 1994, at 29-31 (in telephone interview of Utah residents, 71% of

respondents believed that “serious mental illness is caused by emotional

weakness,” and 35% believed that mental illness is caused by “sinful

behavior”).

1]

TT Te er”

years have presented persons with mental disabilities as

objects of ridicule.3! Just last year, the United States Surgeon

General decried the continuing stigmatization of persons

with mental! disabilities:

Stigmatization of people with mental

disorders has persisted throughout history.

It is manifested by bias, distrust,

stereotyping, fear, embarrassment, anger

and/or avoidance. . . . It reduces patients’

access to resources and opportunities (e.g.,

housing, jobs) and leads to low self-esteem,

isolation, and hopelessness. ... In its most

overt and egregious form, stigma results in

outright discrimination and abuse. More

tragically, it deprives people of their dignity

and interferes with their full participation in

society .*2

The Holocaust, which began with attacks on the

physically and mentally disabled,? provides a paradigm for

the phenomenon that, when a group is perceived as morally

repugnant, accursed, or subhuman, disparate treatment

comes to be viewed not only as inoffensive, but as morally

appropriate. Perceptions of “otherness” in this country

have generated “reactions of pity, helplessness, distrust,

uneasiness, and fear” in members of the non-impaired

population, which, “in turn, serve as potent barriers to the

participation of disabled persons in many forms of social

activity.” For this reason, Congress justifiably concluded:

31 See, e.g., Something About Mary (1998) and Scary Movie (2000) (mental

retardation); Me, Myself and Irene (2000) (multiple personality disorder).

32 US. Public Health Service, Dep’t of Health & Human Services, Mental

Health: A Report of the Surgeon General 6 (1999).

33 Marta Aussell, Beyond Ramps: Disability at the End of the Social Contract

20-28 (1998); Mark Mazower, Dark Continent 98 (1998).

% Advisory Comm'n on Intergovernmental Relations, Disability Rights

Mandates: Federal and State Compliance with Employment Protections

and Architectural Barrier Removal 20 (1989) (hereinafter “Disability

Rights Mandates”).

12

= 1S nah SSM AO EN GER NAIR BEER LIA ENE IPO

that “our society is still infected by the ancient, now almost

subconscious assumption that people with disabilities are

less than fully human. . . .”35

3. Psychological Discomfort

While stereotyping and_ stigmatization reflect

cognitive constructs regarding persons with disabilities, a

third contributor to prejudice against such persons is an

affective phenomenon - the feelings of discomfort,

embarrassment, or repugnance that some _ persons

experience when interacting with persons with disabilities.

Empirical studies show that unimpaired persons

encountering persons with disabilities frequently experience

such psychological uneasiness, which often manifests itself

in restricted or inhibited behavior.*

Researchers have offered a number of explanations

for such negative reactions to persons with disabilities. For

some individuals, such reactions reflect embarrassment or

awkwardness in not knowing the proper mode of social

intercourse with someone with a disability.” For others,

*° Senate Comm’n on Labor and Human Resources, Report on the

Americans with Disabilities Act of 1989, S. Rep. No. 101-116, at 8-9 (1989).

% See, e.g., Robert Kleck et al., The Effects of Physical Deviance Upon Face-To-

Face Interaction, 19 Hum. Rel. 425, 433-35 (1966) (subjects asked to

interview person with apparent disability were more restricted in their

communication, expressed views less representative of their actual

beliefs, and terminated interviews sooner than when interviewing same

person appearing without disability); Robert Kleck, Physical Stigma and

Nonverbal Cues Emitted in Face-To-Face Interaction, 21 Hum. Rel. 19, 26-27

(1968) (subjects demonstrated inhibited physical gestures when

interacting with physically disabled person); Robert Kleck, Physical Stigma

and Task Oriented Interactions, 22 Hum. Rel. 53, 54, 59 (1969) (finding that

unimpaired persons maintain greater physical distance when teaching

origami to persons with disabilities); Fred Davis, Deviance Disavowal: The

Management of Strained Interaction by the Visibly Handicapped, 9 Soc. Probs.

120, 123 (1961) (interactions with persons with disabilities evoke “strain

and tension” on the part of persons without disability).

7 Henderson & Bryan, supra, at 32 (“encountering someone who has a

disability represents an unfamiliar situation for those who do not have

disabilities,” which can lead to “anxiety and withdrawal”).

13

anxiety results from the perception of a person with a visible

disability as “a kind of talisman, a visible incarnation of

death.. . sexuality, and dependency... .”% As one author

described this phenomenon:

[U]pon encountering a physically disabled

individual, the non-disabled person is

reminded of his or her inevitable death, a

reminder that is certain to be accompanied by

a heightened state of anxiety. This anxiety

reaction results in a psychological, as well as

a physical, rejection of disabled individuals.”

In one experiment, subjects were presented with the

choice of interacting with persons with values either similar

to or different from their own. When presented with

unimpaired individuals, the subjects chose to interact with

persons having similar values; however, when the choices

involved persons presented as having recently suffered a

nervous breakdown, the subjects chose to interact with

those persons most unlike themselves. The study concluded

that these choices reflected the subjects’ desire to alleviate

anxiety about their own possible future emotional

disturbance by associating such disability with individuals

fundamentally different from themselves.”

Finally, on the most superficial level, feelings of

discomfort toward persons with visible disabilities may

result from nothing more than the belief, in a society that

deifies physical beauty, that disability is simply “displeasing

38 Gliedman & Roth, supra, at 374.

3% Hanoch Livneh, Death Attitudes and Their Relationship to Perceptions of

Physically Disabled Persons, J. Rehabilitation, Jan.-Mar. 1985, at 38, at 38, 38;

Jo E. Endres, Fear of Death and Attitudinal Dispositions Toward Physical

Disability, 39 Dissertation Abstracts Int'l 7161A (1979) (study indicating

that negative attitudes toward disability are positively correlated to fear

of death).

“ David W. Novak & Melvin J. Lerner, Rejection as a Consequence of

Perceived Similarity, 9 J. Personality & Soc. Psychol. 147, 151 (1968).

14

or distasteful.”4!

Importantly, however, psychological discomfort is

by no means limited to persons with visible physical

disabilities. To the contrary, surveys show that the public

feels more uncomfortable towards persons with mental

illness than towards persons with other types of disability.‘

Whatever the root cause of discomfort in unimpaired

persons when interacting with a person with a disability,

those feelings can, consciously or unconsciously, lead to

segregation and isolation. A carefully-designed sociological

study indicated that, when unimpaired people can disguise

their motives, they tend to avoid interactions with persons

with disabilities. Subjects were given the choice of viewing

one of two similarly-themed films on a television monitor.

Choosing one film required the subject to sit next to a

person with a visible physical disability; if the subject chose

the other film, he or she would sit next to a person with no

apparent disability. The subjects routinely selected the film

that did not require sitting next to the person with a

disability. These results vividly underscore how the

psychological distress some people experience when

interacting with persons with disabilities can limit the

latters’ ability to be integrated members of society.

4. Paternalization and Pity

A final basis of prejudice is one that at first appears

benign. Many who view people with disabilities as neither

incompetent, evil, subhuman, unnerving nor repugnant

nonetheless harbor perceptions about them that result in

41 Harlan Hahn, Paternalism and Public Policy, Soc’y, Mar.-Apr. 1983, at 36,

44; Safilios-Rothschild, supra, at 10-11 (“The nondisabled feel repulsion

and disgust for the disabled - in different degrees of intensity and about

different types of disability - and then usually guilt because of these

‘unacceptable’ feelings.”).

42 See, e.g., National Organization on Disability, Louis Harris & Assoc.,

Public Attitudes Toward People with Disabilities 17, 18, 31 (1991).

43 Melvin L. Snyder et al., Avoidance of the Handicapped: An Attributional

Ambiguity Analysis, 37 J. Personality & Soc. Psychol. 2297, 2303-04 (1979).

15

diminished opportunity or segregation. These are people

who believe that the world is simply too much of a struggle

for persons with disabilities, and, therefore, that they should

be protected from its vicissitudes. Ilustrations of this

principle are the phenomena of “poster children” and

telethons.

Although ostensibly less invidious than prejudice

based upon hostile animus, paternalistic attitudes also fence

persons with disabilities out of mainstream society.

Paternalism enables the dominant elements

of a society to express profound and sincere

sympathy for the members of a minority

group while, at the same time, keeping them

in a position of social and economic

subordination. It has allowed the

nondisabled to act as the protectors, guides,

leaders, role-models, and intermediaries for

disabled individuals who, like children, are

often assumed to be helpless, dependent,

asexual, economically unproductive,

physically limited, emotionally immature,

and acceptable only when they are

unobtrusive.#

The “flip side” of the pitiable poster child is the

“supercrip,” the heroic overachiever who manages to

perform strenuous physical acts notwithstanding his or her

disability.5 The all-too-frequent perception by many

individuals that persons with disabilities must fall into one

of these two camps, superhero or wretch, implies “that a

disabled person is presumed deserving of pity - instead of

+ Harlan Hahn, Disability and Rehabilitation Policy: Is Paternalistic Neglect

Really Benign? 42 Pub. Admin. Rev. 385, 388 (1982).

45 Shapiro, supra, at 16. Well-known examples include Terry Fox, a cancer

survivor whose run across Canada despite having an artificial leg

prompted a television movie, one-armed baseball pitcher Jim Abbott, id.

at 17-19, and two-time Tour de France champion and cancer survivor

Lance Armstrong.

16

respect - until he or she proves capable of overcoming a

physical or mental limitation through extraordinary feats.”

Burdening disabled people with such unrealistic

expectations before according them the basic respect

routinely granted unimpaired people is grossly unfair, for

the simple reason that most persons with disabilities, like

most persons without disabilities, “are trying simply to lead

normal lives, not inspire anyone,” “7 and deserve to be

allowed to do so without feeling like failures.

B. The Pernicious Nature of Prejudice Against

Persons With Disabilities

As the foregoing suggests, the roots of prejudice

towards persons with disabilities are varied, pervasive, and

deeply engrained. Such prejudices date at least as far back

as Biblical associations of disability with sin and

punishment, and span virtually all industrial cultures and

nationalities.*

Notwithstanding this long and widespread history

of mistreatment, however, the outrage that accompanies

prejudice against racial, ethnic and religious minorities has

rarely been exhibited with regard to prejudice against the

disabled population. This lack of response has been

explained as a by-product of the paternalistic/stereotyped

notion that persons with disabilities, unlike other minorities,

“deserve” to be treated unequally.

# Id. at 16.

#7 Id.

* See, e.g., Robert Straus, Social Change and the Rehabilitation Concept, in

Sociology and Rehabilitation 1, 3 (Marvin B. Sussman ed., 1965) (noting

“variety of harsh and hideous treatments” to which “ persons disabled by

problems for which little could be done or which appeared only remotely

related to the broader social need” have been subjected throughout

Western history); cf. School Board of Nassau County v. Arline, 480 US. 273,

284 n.12 (1987) (hereinafter “ Arline”) (“[t}he isolation of the chronically ill

and of those perceived to be ill or contagious appears across cultures and

centuries, as does the development of complex and often pernicious

mythologies about the nature, cause, and transmission of illness”).

17

[T]he lay culture’s notion of tolerance toward

handicapped people takes for granted the

reality of the “self-evident” inferiority of the

handicapped person. Instead of challenging

this vulgar prejudice, it makes its analytical

point of departure the negative feelings that

our naive perceptions of handicapped people

often provoke in us. Yes, we Say,

handicapped people are indeed as helpless

and incompetent as we believe them to be.‘

However, the assumption that unequal treatment of

persons with disabilities is based upon legitimate

differences is a pernicious one. “[A] belief in the social

incapacity of the handicapped” often “disguises ignorance

or bigotry behind what we ‘see’ to be an obvious biological

fact.” This risk is particularly significant because of the

ease with which prejudiced attitudes against persons with

disabilities can lie concealed behind a rational facade.5!

The difficulty of detecting irrational prejudice is

exacerbated by the fact that most people do not wish to

acknowledge having an aversion to persons with

disabilities. Several studies have noted a marked

ambivalence in the response of unimpaired persons towards

those with disabilities. Whereas “public, verbalized

attitudes” are often favorable, “deeper, unverbalized

feelings” are often rejecting.®? A Canadian study, for

49 Gliedman & Roth, supra, at 32.

50 Id. at 23.

51 See, e.g., Gary E. Holmes & Ronald H. Karst, The Institutionalization of

Disability Myths: Impact on Vocational Rehabilitation Services, J.

Rehabilitation, Jan.-Mar. 1990, at 20, 23 (“When a counselor makes a

decision about the client's case solely to enforce conformity, the casefile

may reflect nothing extraordinary. Counselors may unknowingly justify

their stereotype-thinking and prejudicial behaviors in case records by

using professional-sounding jargon.”).

52 Irwin Katz et al., Attitudinal Ambivalence and Behavior Toward People with

Disabilities, in Attitudes Toward Persons with Disabilities 47, 48 (Harold E.

Yuker ed., 1988). Thus, individuals’ verbal impressions about persons

18

example, found that, although two-thirds of employers

expressed willingness in principle to hire persons with

developmental disabilities, at the conclusion of the survey

only 26% of them would agree to receive job inquiries from

such persons. ‘Such findings suggest that many people

who disclaim any disability prejudice may nonetheless react

in a prejudiced and exclusionary manner in real-life

interactions with persons with disabilities.

c. The Effects Of Prejudice

Real-life links between irrational prejudices and

unequal treatment of persons with disabilities manifest

themselves repeatedly in three of the principal areas

targeted by the ADA in which the states are heavily

involved: employment; health services; and education.

1. Employment

The experience of persons with disabilities in the

work force provides compelling evidence of the negative

impact of societal prejudices. In a recent Harris Poll, only

56% of persons with disabilities who were able to work

were employed, in contrast to 81% of the rest of the

population.*

with disabilities are frequently positive at the same time that their

nonverbal physiological responses (such as body language, gestures, and

physical distance) are negative. Harold H. Kelley et al., Some Implications

of Social Psychological Theory for Research on the Handicapped, in Psychological

Research and Rehabilitation 172, 186-87 (Lloyd H. Lofquist ed., 1960)

(unimpaired persons experience ambivalence in social encounters with

persons with disabilities, resulting in formal, stilted behavior intended to

conceal negative feelings that may cause embarrassment).

53 David Gibson & Gerrit Groeneweg, Employer Receptivity to the

Developmentally Handicapped: When “Yes” Means “No,” Canada’s Mental

Health, June 1986, at 12, 15.

4 Louis Harris & Assoc., The 2000 N.O.D./Harris Survey of Americans

with Disabilities, Executive Summary, { 5 and 6 (visited Aug. 9, 2000)

(http:/ / www.nod.org/hs2000.html) (hereinafter “2000 Harris Poll”).

Importantly, however, these numbers reflect substantial improvement

since enactment of the ADA. In 1986, a similar Harris poll reported that

19

The report that proposed enactment of the ADA

concluded that prominent reasons for high unemployment

and underemployment among persons with disabilities

included “societal attitudes which cause employers to

discriminate against persons with disabilities.”55 That

conclusion was fully supported by empirical evidence.

For more than fifty years, the reported experiences of

those who have employed individuals with disabilities have

been almost overwhelmingly positive. In 1948, the Bureau

of Labor Statistics examined the employment records of

11,000 physically disabled and 18,000 matched non-disabled

workers in manufacturing plants throughout the country.

This study found that, as a group, persons with disabilities

were as efficient as those without disabilities and had

identical safety records. Subsequent studies have been

similarly positive.”

only 46% of those persons with disabilities who were able to work were

employed. Id.

© National Council on the Handicapped, Toward Independence, A

Report to the President and to the Congress of the United States 22 (1986).

% U.S. Dep't of Labor, Bull. No. 923, The Performance of Physically

Impaired Workers in Manufacturing Industries 3 (1948).

7 See, e.g., U.S. Dep’t of Labor, Bull. No. 234, Workmen’s Compensation

and the Physically Handicapped Worker 5 (1961) (concluding, upon

review of employer studies from 1932 through 1961, that a qualified and

properly placed worker with a physical disability is “a good worker,”

“reliable,” “productiv[e]”, and “careful”); U.S. Civil Service Comm'n, A

Chain of Cooperation: Severely Physically Handicapped Employees in

the Federal Service 3 (1976) (study of appointments of severely

handicapped workers to Federal agency jobs from 1964 to 1975 concluded

that their “work record is excellent.”); George Howard, The Ex-Mental

Patient as an Employee: An On-the-Job Evaluation, 45 Am. J. Orthopsychiatry

479, 482-483 (1975) (employees with history of psychiatric disabilities

reported to have same job performance as other employees); Gopal C.

Pati, Countdown on Hiring the Handicapped, 57 Personnel J. 144, 146 (1978)

(1976-77 study of 8,000 handicapped people employed by 16 major

corporations showed that they had lower absentee rates, equivalent or

superior job performance, no impact on insurance costs, lower turnover,

and required minimal to no accommodations); Henry A. Tombari,

Lending a Hand to the Handicapped: A Primer for Business, Advanced Mgmt.

20

Given this uniformly positive work history, various

governmental and research organizations have concluded

that prejudice is the major reason that otherwise qualified

persons with disabilities are underemployed. In 1975, the

Urban Institute observed that

[vjirtually all the studies on employer

attitudes have found that large proportions of

employers disfavor hiring disabled people.

There are strong indications that these

attitudes are in large part based on

nonrational, negative feelings - prejudice, in

other words... . 8

Fourteen years later, on the eve of the ADA’s

passage, state advocates and public officials agreed

[upon] the significant and often negative

impact of public and employer attitudes

toward persons with disabilities. ae

[{][These] attitudes persist, despite evidence

that handicapped workers are productive,

countless experiences with persons with

disabilities who have made successful

adjustments to work settings, and studies

J., Autumn 1979, at 44, 48-49 (study of 100 corporations found that

disabled workers had lower than average productivity in only 10% of the

cases, higher than average absenteeism in fewer than 5% of the cases, and

lower turnover rates in 83% of the cases); Wendy S. Parent & Jane M.

Everson, Competencies of Disabled Workers in Industry: A Review of Business

Literature, J. Rehabilitation, Oct.-Dec. 1986, at 16, 16-19 (reviewing 13

articles reporting employers’ positive experiences in hiring persons with

disabilities); Louis Harris & Assocs., The ICD Survey II: Employing

Disabled Americans (1987) (75% of managers polled give disabled

employees a good or excellent rating on overall job performance).

Nor do the facts bear out the common complaint that the hiring of

persons with disabilities is unduly costly to the employer. In the 1987

Harris Poll, 75% of managers who had employed persons with disabilities

said that the average cost of hiring them was about the same as that of

hiring non-disabled persons. Id.

%® Urban Institute, Report of the Comprehensive Service Needs Study 324

(1975). |

21

showing that most work place

accommodations involve little cost.

Indeed, at precisely the time Congress was reaching

the conclusion that societal discrimination had adversely

affected the employment of persons with disabilities, a

commission examining this issue in the nation’s most

populous state made precisely the same finding:

[T]he experience of people with disabilities

who serve on the Commission, testimony,

and research studies document

discrimination as the major cause of

unemployment among people with

disabilities. [ ]. Many employers erroneously

assume that providing a _ reasonable

accommodation for a person with a disability

would be complex and costly, when it may be

as simple as providing a stool at a

workbench, or placing a ramp over a stair.

Surveys and testimony indicate that many

employers are victims of myths about the

competency and reliability of people with

disabilities.

In sum, the totality of the available data, going back

at least 40 years, indicates that engrained and often hidden

societal prejudices against persons with disabilities have a

material adverse impact upon the ability of these persons to

participate in the work force according to their true abilities.

% Disability Rights Mandates, supra, at 73.

6 California Dep't of Justice, Attorney General’s Comm'n on Disability,

Final Report 128 (1989) (hereinafter “California Report”). Again, the

foregoing findings are not limited to physical disabilities. Ciristopher I.

Stone & Birgit Sawatzki, Hiring Bias and the Disabled Interviewee: Effects of

Manipulating Work History and Disability Information of the Disabled Job

Applicant, 16 J. Vocational Behav. 96, 101 (1980) (job applicants presented

as having had history of psychological disability - specifically, a nervous

breakdown - found to be much less likely to be hired than applicants

without such history, despite identical qualifications and interview

performance).

22

2. Health Services

Prejudices against persons with disabilities manifest

themselves in discriminatory behavior precisely in an area

where people with disabilities may most need services -

health care. Researchers have reported prejudice against

people with disabilities in the health care community.®

These negative attitudes in turn lead to adverse decisions

about what, if any, health care services persons with

disabilities will receive.

Most people with disabilities are satisfied with the

quality of their lives.*2 Moreover, after a period of

adjustment, life satisfaction of persons with disabilities is

not significantly related to the degree of physical

impairment. Health professionals, however, continue to

61 See Carol J. Gill, Health Professionals, Disability, and Assisted Suicide: An

Examination of Relevant Empirical Evidence, J. Psychol., Pub. Pol’y & L.

(forthcoming 2000) (noting that “studies consistently demonstrate that

disability attitudes of health professionals are as negative and sometimes

more negative than public attitudes”); Gliedman & Roth, supra, at 17

(“despite their condemnations of prejudice toward the disabled, [the

models of health care professionals] share far more with longstanding

myths and stereotypes about handicap than has generally been

recognized.”); Lindsay Gething, Judgments by Health Professionals of

Personal Characteristics of People with a Visible Physical Disability, 34 Soc. Sci.

& Med. 809, 812-14 (1992) (health care professionals shown a videotaped

employment interview of interviewee depicted in a wheelchair devalued

interviewee in characteristics unrelated to the disability).

62 M. G. Eisenberg & C.C. Saltz, Quality of Life Among Spinal Cord Injured

Persons: Long Term Rehabilitation Outcomes, 29 Paraplegia 514, 517-18

(1991) (citing various studies).

6 Gill, supra (citing studies); Nancy Weinberg, Another Perspective:

Attitudes of Persons with Disabilities, in Attitudes Toward Persons with

Disabilities 141, 142-43 (Harold E Yuker ed., 1988) (in study of 88 persons

with various physical disabilities, including muscular dystrophy, cerebral

palsy, and multiple sclerosis, most viewed it as merely a fact of life, or at

most an inconvenience; fewer than 20% viewed it as a cause of

frustration, a terrible thing, or the worst thing that ever happened to

them); id. at 143-53 (subsequent study showing that a significant

percentage of persons with physical disabilities would not choose to have

corrective surgery even if success were assured and there were no risks

attached).

23

make decisions based upon their assumption that persons

with disabilities have a poor quality of life. Numerous

studies find that health care professionals routinely

undervalue the life satisfaction of persons with disabilities.“

Professionals who believe that they personally would not

wish to live with a particular disability are far less likely to

support life-saving treatment for a patient with such a

disability. Studies performed from 1977 through 1994 have

shown that: emergency care professionals who devalue life

with high-level spinal cord injuries are far more likely to

withhold life-saving surgeries for such patients; healthcare

providers often oppose life-sustaining treatment for persons

with high-level quadriplegia; 41% of Muscular Dystrophy

Association clinic directors would discourage ventilator use

by patients facing respiratory failure; and two-thirds of

pediatric surgeons would not support life-sustaining

surgery for a child with Down’s syndrome.©

Pessimistic views of the quality of life with a

disability are even used to justify euthanasia. Thus, in 1975,

a proponent of withholding life-saving health services from

infants born with disabilities employed precisely the

rhetoric discussed above - the stigmatizing notion of the

“otherness” of persons with disabilities - to justify his

argument: “[C]onception and birth by human parents does

“4 See Gill, supra (citing studies of overly pessimistic attitudes of health

professionals toward quality of life of spinal cord injury patients, persons

with quadriplegia, ventilator-assisted polio survivors, elderly patients

with chronic conditions, laryngectomy patients, persons with spina

bifida, and children with developmental disabilities).

65 Id.; see also Glenn G. Affleck, Physicians’ Attitudes Toward Discretionary

Medical Treatment of Down's Syndrome Infants, 18 Mental Retardation 79, 80

(1980) (noting, upon review of four surveys on physician attitudes, that “a

majority of physicians sampled prefer that at least some infants with

Down’s Syndrome not be treated ‘aggressively’ to correct life-threatening

conditions that in otherwise normal infants unquestionably would

prompt intervention”); Mark L. Wolraich et al., Pediatricans’ Perceptions of

Mentally Retarded Individuals, 80 Pediatrics 643, 643 (1987) (“many

physicians have an unduly pessimistic impression of the potential of

handicapped infants”).

24

not automatically endow one with personhood. . . . Some

other characteristic or feature must be present in the

organism for personhood to vest, and this the defective

infant arguably lacks.”® Similar prejudices deny the basic

humanity of people with severe mental retardation.” As

recently as 1985, a book on medical ethics stated matter-of-

factly that “some infants with severe disabilities should be

killed.”

The negative views of the health care community

against persons with disabilities go beyond the theoretical,

with deadly, real-world effects. In the late 1980's, doctors

and a state court judge, citing poor quality of life, supported

and agreed to 34-year old quadriplegic Larry James

McAfee’s request that he be allowed to die, even though

McAfee could function quite capably with the use of a

respirator. In fact, McAfee’s main problem was not his

disability, but depression from constantly being shunted

back and forth from one inappropriate state health care

facility to another. When finally placed in a proper

environment, McAfee reported himself happy to be alive.”

Others have not been as fortunate. In the early

1970’s and throughout the 1980's, thousands of disabled

newborns were denied lifesaving medical treatment every

John A. Robertson, Involuntary Euthanasia of Defective Newborns: A Legal

Analysis, 27 Stan. L. Rev. 213, 246-47 (1975).

67 Peter Paul Rickham, The Ethics of Surgery in Newborn Infants, 8 Clinical

Pediatrics 251, 251 (1969) (“One might ask whether class five [profound

mental retardation] can be regarded as being ‘humanly alive’ in the sense

in which we usually understand these words”); Joseph Fletcher, Indicators

of Humanhood: A Tentative Profile of Man, Hastings Center Rep., Nov. 1972,

at 1, 1 (“Any individual of the species homo sapiens who falls below the

1.Q. 40-mark in standard Stanford-Binet test . . . is questionably a person;

below the 20-mark, not a person”); Bernard Bard & Joseph Fletcher, The

Right to Die, The Atlantic, Apr. 1968, at 59, 64 (suggesting that a parent

withholding medical care from a child with Down's syndrome should feel

no guilt, because a “ Down's is not a person”).

6 Helga Kuhse & Peter Singer, preface to Should the Baby Live? The

Problem of Handicapped Infants (Peter Singer ed., 1985).

® Shapiro, supra, at 258-288.

25

year.” In 1983, the Oklahoma Health Sciences Center even

adopted a selection process for deciding whether to treat

infants with spina bifida that used a mathematical formula

to measure quality of life.71 Because untreated infants with

spina bifida typically expire within a few months of birth,

the decision to withhold treatment was effectively a death

sentence.

In short, in health care as in employment,

misconceptions about the value of life with a disability have

led to invidious discriminatory behavior that severely limits

the opportunities - including, on occasion, the opportunity

to live at all - of persons with disabilities.

3. Education

Irrational prejudice also has an adverse impact upon

the education of children with disabilities. A key aspect of

the education of students with disabilities is the willingness

of states to provide an education that will equip them to

participate in all aspects of society. Unfortunately,

educators systemically tend to underestimate the potential

of students with disabilities. The consequence has been the

closure of the most important avenue for liberating people

with disabilities.

Researchers have found that “practicing teachers

demonstrate[] significantly more negative attitudes toward

various groups of exceptional children (e.g., physically

handicapped children, mentally retarded children, learning

7 Accommodating the Spectrum, supra, at 35, and newspaper and

periodical articles cited therein; John A. Robertson, Legal Aspects of

Withholding Medical Treatment from Handicapped Children, in Legal And

Ethical Aspects of Treating Critically and Terminally Ill Patients 213 (A.

Edward Doudera & J. Douglas Peters eds., 1982) (“[w]ithholding

necessary medical care from defective newborns in order to cause their

death is a common practice in many medical centers across the United

States”).

7 Richard H. Gross et al., Early Management and Decision Making for the

Treatment of Myelomeningocele, 72 Pediatrics 450, 456 (1983) (citing A.

Shaw, Defining the Quality of Life, Hastings Center Rep., 1977).

26

- disabled children, and emotionally disturbed children) than

toward normal children.”” In the eyes of educators, “[t]he

label of disability often is associated with lower expectation

Or perception that the students’ performance will be

diminished.”

Given such attitudes, it is hardly surprising that

people with disabilities report being consistently steered

into academic programs that neither conform to their

demonstrated abilities nor prepare them for employment.”

Nor is it surprising that their educational attainment lags

behind that of the rest of the population. Persons with

disabilities are much less likely to complete high school or

college than persons without disabilities.”5

72 Thomas S. Parish et al., Normal and Exceptional Children’s Attitudes

Toward Themselves and One Another, 104 J. Psychol. 249, 249 (1980).

73 Sharon Field et al., Effects of Disability Labels on Teachers’ Perceptions of

Students’ Self-Determination, 75 Perceptual & Motor Skills 931, 931 (1992),

citing R. Taylor et al., The Effects of Labels and Assigned Attributes on Teacher

Perceptions of Academic and Social Behavior, 18 Educ. & Training Mentally

Retarded 45 (1983); see also Herbert Grossman, Special Education in a

Diverse Society: Improving Services for Minority and Working-Class Students,

Preventing School Failure, Fall 1991, at 19, 21 (“Educators judge the work

and performance of [disabled] students to be lower or less adequate than

it actually is and their intellectual potential and a social skills to be lower

than objective data would suggest.”).

74 See, e.g., Marilynn J. Phillips, Damaged Goods: Oral Narratives of the

Experience of Disability in American Culture, 30 Soc. Sci. & Med. 849, 854-55

(1990); see also Kim C. Oppenheimer & Max D. Miller, Stereotypic Views of

Medical Educators Towards Students with a History of Psychological

Counseling, 35 J. Counseling Psychol. 311, 312 (1988) (medical school

residency program applicants with history of psychological counseling

less likely to be invited for interview or accepted into program).

75 See 2000 Harris Poll at { 10 (percentage of persons with disabilities who

fail to complete high school is more than twice that of rest of population;

12% of persons with disabilities receive college degrees, compared to 23%

of the rest of the population); see also Thomas M. Shea & Anne M. Bauer,

Learners with Disabilities: A Social Systems Perspective of Special Education 20

(Sue Pulvermacher-Alt et al. eds., 1994) (persons with disabilities have far

less education than other Americans). Again, however, there has been a

marked improvement in the years since enactment of the ADA. In 1986,

27

Two stories perhaps best illuminate the negative

impact of disability prejudice in public education. In the

hearings leading up to the enactment of the Rehabilitation

Act, Representative Vanik cited a case where a court found

that an academically competitive child with cerebral palsy

should be excluded from public school because his teacher

claimed his physical appearance “produced a nauseating

effect” on his classmates.”6

A second commentator recounts the story of a post-

polio quadriplegic enrolling at the prestigious University of

California at Berkeley - a renowned state university. The

California Department of Rehabilitation refused to pay for

the same four-year education for a quadriplegic student that

it did for less severely disabled students, because the

expenditure of such sums “would be wasted since it was

‘infeasible’ that he could ever work.” Then, when the

student lobbied Berkeley directly, he was informed very

matter-of-factly by one dean that they had “tried cripples

before and it didn’t work.””

Incidents like these vividly demonstrate that

prejudice has negatively affected the educational

opportunities of persons with disabilities, just as it has

negatively affected their employment and health care

opportunities.

IV.

CONCLUSION

The ADA is predicated on the fundamental notion

that persons with disabilities are entitled to be meaningful

participants in society, restricted only by the true (as

opposed to presumed) limitations imposed by their specific

disabilities. This was a step that previous legislation had

not taken. As late as 1989, for example, California’s

only 61% of persons with disabilities had graduated from high school,

compared to nearly 80% today. 2000 Harris Poll, supra, at ¥ 12.

7 117 Cong. Rec., 45974 (1971) (cited in Arline, 480 U.S. at 282 n.9).

77 Shapiro, supra, at 44-45.

28

Commission on Disability had acknowledged that

California’s own

agencies continue to use unfair social policies

premised on paternalism and discriminatory

attitudes which effectively exclude people

with disabilities from full participation in

community life. ... In their fear of disability,

their devaluation of the lives of people with

disabilities, and in their unwillingness tc

share resources equitably, they have shunned

their responsibility to guarantee equal

opportunity for all.”

In 1987, this Court recognized the truth of

Congress’s determination that “society's accumulated myths

and fears about disability are as handicapping as are the

physical limitations that flow from actual impairment.””

That observation is no less apt today. Society’s deep-seated

and hidden “myths and fears” about disability continue to

have significant real-world consequences for the lives of

people with disabilities. By admitting persons with

disabilities into the mainstream of American society, the

ADA represents major progress toward reversing

78 California Report, supra, at 57; see also Richard H. Scotch, From Good

Will to Civil Rights: Transforming Federal Disability Policy, 9-10 (1984)

(“Most [federal] programs [prior to the ADA] perpetuated an image of

disabled people as socially incomplete or damaged as a result of their

physical or mental impairments. Seen as incapable of self-sufficiency,

they were to be pitied, and stigmatized; both help and segregation were

deemed appropriate. [ ] Such views were deeply entrenched in

American society.”).

” Arline, supra, 480 U.S. at 284; see also Report of a United Nations Expert

Group Meeting on Barrier Free Design, 26 Int'l Rehabilitation Rev. 3 (1975)

(“[mJore people are forced into limited lives and made to suffer by ...

man-made obstacles than by any specific physical or mental disability”);

Disability Rights Mandates, supra, at 20 (“Probably the most significant

barriers faced by persons with disabilities relate to the attitudes, pre-

dispositions, and behaviors of nondisabled persons. Such attitudes range

from negative views of disability to discomfort in associating with people

who experience some form of disability.”).

29

prejudiced attitudes and improving the environment in

which persons with disabilities live.®

August 11, 2000 Respectfully submitted,

MUNGER,TOLLES & OLSON

LLP |

CHARLES D. SIEGAL

TED G. DANE

WESTERN LAW CENTER

FOR DISABILITY RIGHTS

EVE HILL

5 Se ie

Ted G. Dane

Attorneys for Amici Curiae

8 Allowing persons with disabilities to be full participants in American

society is necessary to end the Catch-22 of disability discrimination. See n.

19, supra. Numerous studies indicate that mainstream contact, in a

context of equality rather than subordination, helps “disconfirm

stereotypes” about persons with disabilities. Harold E. Yuker, Variables

that Influence Attitudes Toward People with Disabilities: Conclusions from the

Data, in Psychosocial Perspectives on Disability, 3, 6-7 (Dana S. Dunn ed.,

1994); see, e.g., Frank Bowe, Handicapping America: Barriers to Disabled

People 112 (1978) (“People who have had extensive contact with disabled

people tend to regard them more favorably . . . than do people with less

contact... .”). Indeed, if interaction occurs early in life, it can even

prevent prejudicial attitudes from forming in the first place. California

Report, supra, at 89 (day-to-day contact in “[i]ntegrated school settings

may enable non-disabled children to have normal contact with their peers

with disabilities and prevent their becoming victims of myths and

stereotypes about people with disabilities”).

30