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The Future of Disability Law

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The Future of Disability Law Article The Future of Disability Law t Samuel R. Bagenstos CONTENTS I. DISABILITY LAW'S SHIFT FROM WELFARE TO RIGHTS ..................... 10 A. Disability Rights Activists Embrace the Antidiscrimination P aradigm ....................................................................................10 B. The Results of the AntidiscriminationApproach ........................19 II. THE LIMITS OF THE ANTIDISCRIMINATION PARADIGM: STRUCTURAL BARRIERS TO EMPLOYMENT ............................................................23 A. StructuralBarriers to Employment for People with Disabilities...25 1. StructuralBarriers Generally ...........................................25 2. The Important Role of Health Insurance............................. 26 a. Limitations of Private Insurance ..................................27 b. Limitations of Public Insurance................................... 32 3. Sum m ary ..............................................................................34 f Professor of Law, Washington University (St. Louis) School of Law. This paper has benefited from comments by workshop participants at the Cornell, University of Texas, Washington University, and University of Minnesota Law Schools, by participants at the Stanford/Yale Junior Faculty Forum, and by Anne Alstott, Jane Cohen, Matthew Diller, Gillian Metzger, Martha Minow, Michael Stein, Rip Verkerke, and, as always, Margo Schlanger. Amy Cyphert, Laura Derr, Rafi Finegold, Rebekah Parker, and Jesse Tampio provided truly outstanding research assistance. Work on this paper was supported by the Harvard Law School and Washington University School of-Law Summer Research Funds and the Labor and Worklife Program at the Harvard Law School, as well as by a research leave granted by Harvard's then- Dean Robert Clark and then-Associate Dean Howell Jackson; thanks are due to them, and to Washington University's Dean Joel Seligman, for their support of my research. I Imaged with the Permission of Yale Law Journal The Yale Law Journal [Vol. 114: 1 B. The Accommodation Requirement's Ineffectiveness in EliminatingStructural Barriers to Employment ........................ 34 1. The "Job-Related" Rule ..................................................... 35 2. The Access/Content Distinction.......................................... 37 C. TreatingAccommodation as Antidiscrimination....................... 42 1. The Analytic Failureof the "Job-Related" and Access/Content Doctrines................................................... 42 a. The "Job-Related" Rule .............................................. 42 b. The Access/Content Distinction ................................... 45 2. The Agenda of the "Job-Related" and Access/Content D octrines ............................................................................. 50 III. THE FUTURE OF DISABILITY LAW: FROM ANTIDISCRIMINATION TO SOCIAL W ELFARE LAW ............................................................... 54 A. The Move (Back) to Social Welfare .......................................... 56 1. Litigation To Enforce the MedicaidAct .............................. 56 2. Expanding Eligibilityfor Public Health Insurance............. 63 3. Expanding the Services Covered by Public Health Insurance ...........................................................................67 B. Em erging Dilem m as ................................................................... 70 1. Universal Versus TargetedApproaches .............................. 70 2. Consumer Control .............................................................. 75 C. The Coherence of the Disability Rights Movement .................... 81 C ON CLU SION .......................................................................................... 83 Imaged with the Permission of Yale Law Journal 2004] The Future of Disability Law 3 Since its enactment in 1990, the Americans with Disabilities Act (ADA) 1 has dominated discussions of disability law in the legal academy. Literally volumes of work have been devoted to defending, criticizing, and analyzing the statute, the cases interpreting it, and the effects it has had in the real world.2 That scholarly focus is in many respects entirely appropriate. The ADA was a historic achievement. It represented our society's first comprehensive acknowledgment that people with disabilities are truly equal citizens, fully entitled to participate in all areas of political, economic, and civic life. And in large and small ways the statute has improved the lives of countless individuals who have disabilities. The ADA has made buildings more accessible and people with disabilities more visible in the community, and it has accelerated the process of removing the stigma from disability. But while the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities, and a number of commentators assert that it has had a negative effect. 3 That result has occurred, I contend, not because of the narrowing interpretations the Supreme Court has placed on the ADA,4 1. 42 U.S.C. §§ 12101-12213 (2000). 2. A list of all of the ADA-focused articles that have appeared in the law reviews would go on for pages. In addition to countless individual articles, the ADA has also been the principal subject of at least eight law review symposia. See Symposium, The Americans with Disabilities Act: Directions for Reform, 35 U. MICH. J.L. REFORM 1 (2001-2002); The Americans with DisabilitiesAct Symposium: A View from the Inside, 64 TEMP. L. REV. 371 (1991); Symposium, Backlash Against the ADA, 21 BERKELEY J. EMP. & LAB. L. 1 (2000); Symposium, Defining the Parametersof Coverage Under the Americans with DisabilitiesAct: Who Is "an Individual with a Disability?," 42 VILL. L. REv. 327 (1997); Symposium, Disability and Identity, 44 WM. & MARY L. REV. 907 (2003); Symposium, Facing the Challenges of the ADA: The First Ten Years and Beyond, 62 OHIO ST. L.J. 1 (2001); Garrett, Disability Policy, and Federalism:A Symposium on Board of Trustees of the University of Alabama v. Garrett, 53 ALA. L. REV. 1075 (2002); Symposium, Individual Rights and Reasonable Accommodations Under the Americans with DisabilitiesAct, 46 DEPAL L. REV. 871 (1997). Among legal scholars alone, the ADA has been the subject of at least three full-fledged books and two edited volumes. See BACKLASH AGAINST THE ADA: REINTERPRETING DISABILITY RIGHTS (Linda Hamilton Krieger ed., 2003); EMPLOYMENT, DISABILITY, AND THE AMERICANS WITH DISABILITIES ACT: ISSUES IN LAW, PUBLIC POLICY, AND RESEARCH (Peter David Blanck ed., 2000) [hereinafter EMPLOYMENT, DISABILITY]; DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES OF AMERICANS WITH DISABILITIES (2003); SUSAN STEFAN, HOLLOW PROMISES: EMPLOYMENT DISCRIMINATION AGAINST PEOPLE WITH MENTAL DISABILITIES (2002); SUSAN STEFAN, UNEQUAL RIGHTS: DISCRIMINATION AGAINST PEOPLE WITH MENTAL DISABILITIES AND THE AMERICANS WITH DISABILITIES ACT (2001). A number of legal scholars also contributed to the edited volume AMERICANS WITH DISABILITIES: EXPLORING IMPLICATIONS OF THE LAW FOR INDIVIDUALS AND INSTITUTIONS (Leslie Pickering Francis & Anita Silvers eds., 2000), which likewise focused on the ADA. 3. See infra Section I.B. 4. Much of the legal academic commentary on the ADA criticizes various decisions of the Supreme Court and other courts that have narrowed the scope of the ADA. See Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. & MARY L. REV. Imaged with the Permission of Yale Law Journal The Yale Law Journal [Vol. 114: 1 but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. The ADA's antidiscrimination requirement can prevent an employer from refusing to hire a qualified person simply because the person has a disability, and the ADA's accommodation requirement can force the employer to make some changes in facilities or job tasks to enable individuals with disabilities to perform particular jobs. But those mandates do not require the employer to provide in-home personal-assistance services or transportation to enable an individual with a disability to get to work, nor do they require the employer to provide the individual with health insurance coverage that is as adequate as he or she can receive through Medicaid. 5 The solutions to these problems require more than simply mandating that individual employers cease discriminating and provide accommodations; they require more direct and sustained government interventions such as the public funding and provision of benefits. In short, the future of disability law lies as much in social welfare law as in antidiscrimination law. Although this point may not be obvious from a scan of legal scholarship, 6 activists "on the ground" have increasingly 921, 930-52 (2003) (collecting examples of that commentary). Examples of the Supreme Court's narrowing decisions include the restrictive readings of the statute's definition of "disability" in cases like Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184 (2002); the expansive reading of employers' defenses in Albertson 's, Inc. v. Kirkingburg, 527 U.S. 555 (1999), and Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002); and the invalidation of the abrogation of state sovereign immunity under the
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