Legal responses to disability range from application of constitutional theory to statutory initiatives. It would be comforting to believe that the U.S. Constitution provides meaningful protection to persons with disabilities. Sadly, the Constitution has little to offer persons with disabilities except in egregious cases. The Bill of Rights is applicable principally to government (DeShaney v. Winnebago County Department of Social Services, 1989). Since most forms of discrimination take place in the private sector, the Constitution is of limited applicability.
Even where state action can be demonstrated, the Supreme Court has not enunciated a coherent and compelling constitutional doctrine to protect persons with disabilities against discrimination. The Court, for example, has never found disability to be a suspect classification, and most government activities do not deprive persons with disabilities of a "fundamental freedom such as liberty" (City of Cleburne, Texas v. Cleburne Living Center, Inc., 1985). Accordingly, the Court might be expected to uphold a state discriminatory action, provided the government could show a reasonable basis for its policy.
The Supreme Court, in one of its few constitutional decisions concerning discrimination against persons with disabilities, did suggest that it would not tolerate clear instances of prejudice or animus in government policies. In City ofCleburne, Texas v. Cleburne Living Center, the Court struck down a city zoning ordinance that excluded group homes for persons with mental retardation. The Court, in a particularly thorough search of the record, found no rational basis to believe that mentally retarded people would pose a special threat to the city's legitimate interest (Gostin, 1987).
A convincing constitutional argument could be made that persons with disabilities should have a high level of constitutional protection as is the case with racial minorities and women. Persons with disabilities have a similar history of exclusion and alienation by the wider society. They are often subject to discrimination on the basis of their status without regard to their abilities.
Much of the legal protection afforded to persons with disabilities is under federal and state law. Statutory initiatives in disability law fall into three general categories: (1) programs and services; (2) income maintenance; and (3) civil rights. Such statutes incrementally have sought the legislative goals of full participation and independence for persons with disabilities. While state laws vary in scope and effect, at the federal level three main acts shaped the corpus of disability law prior to enactment of the ADA.
The federal Rehabilitation Act (29 U.S.C. 791-794 [1988 and Supp. I 1989]), enacted in 1973, covers federally funded entities (and continues to cover all federal employees). Section 504 of this act (broadened by amendments in 1987) prohibits discrimination against otherwise qualified disabled persons in any federally funded program, executive agency, or the Postal Service. Sections 501 and 503 require affirmative action hiring plans in the federal government and certain large federal contractors.
The Individuals with Disabilities Education Act (IDEA) (42 U.S.C. 6000-6081 ; 20 U.S.C. 1400 et seq. ), enacted in 1975 and amended in 1990, mandates a free and appropriate education for all children with disabilities, encouraging integration (mainstreaming) whenever possible.
The Fair Housing Amendments Act of 1988 (42 U.S.C. 3601-3619 ) ensures that persons with disabilities are a protected class in housing discrimination cases, and mandates access requirements for new housing and adaptation requirements for existing housing to ensure that the housing needs of disabled persons are met. This act continues to cover housing discrimination in place of specific provisions in the ADA.
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