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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 356

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A33. Public record. Not legal advice.