JURIST Guest Columnist Robert Borrelle, Syracuse University College of Law Class of 2013, works in the Disability Rights Clinic at Syracuse University. He argues that the current medical model of disability used in the US legal system should be rejected in order to further societal and legal recognition of Disability culture…
itigation has played a crucial role in social movements throughout the history of the US. The importance of Brown v. Board of Education
to the Civil Rights Movement is one example of how a lawsuit can be an invaluable asset to furthering an oppressed group’s goals. Established legal precedent like Brown
can clear a path to a brighter and more dignified future. However, there is more to social movements than lawsuits and legislation. Social change can only occur when there is a change in society’s collective attitude towards the oppressed group. These attitudinal changes occur when there is an awareness of a group’s culture and an acceptance of the equal rights of the members of that group. What happens when social change is sought through a legal system that lacks this cultural awareness? That is the question facing the Disability Rights Movement. The current lack of awareness surrounding cultural differences, particularly those of Deaf culture, and uninformed assumptions about disability, have produced judgments that frustrate the purpose of the movement. Litigation is undoubtedly important to the future of the Disability Rights Movement, but until there is a greater awareness of Disability culture in the legal system, it will remain an imperfect vehicle to further the movement’s goals.
The Disability Rights Movement has at its core the idea that it is not the impairment itself that disables people; rather, it is society that disables people with impairments. This is a repudiation of the medical model of disability, which views disability as a deficit within the individual. The Disability Rights Movement is unique in that it strives to not only change society’s perception of disability, but also to change the physical environment itself. To achieve these ends, the movement has adopted the philosophy of “Universal Design”—the concept that structural changes that ensure access for individuals with disabilities simultaneously ensure access for all. The most common explanation of this is the idea that a ramp, which allows people who use wheelchairs to access a building, can be used by everyone entering the building.
The rejection of disability as a medical deficit has empowered individuals with disabilities to celebrate their differences. The manifestation of this pride has been the creation of a collective identity referred to as Disability culture. In the broad sense, Disability culture is comprised of various groups whose identities center on their specific disability. For example, one such group is Deaf individuals. In Deaf culture, there is a distinction between little “d” deaf, the audiological impairment, and big “D” Deaf, the cultural identity. Members of the Deaf community celebrate Deafness as a cultural identity that has its own language, American Sign Language (ASL).
Despite the richness and complexity of this culture, the medical model dominates discussions of Deafness in the law. This is most evident in the 1982 Supreme Court case Board of Education of Hendrick Hudson Central School District v. Rowley. Amy Rowley was a Deaf first-grade student in Peekskill, New York. Amy’s parents sought the services of a sign language interpreter for Amy in the general education classroom. Although Amy was an excellent lip-reader, it was estimated that she was missing more than half of what was being said in the classroom. Amy’s parents were Deaf and believed Amy should be receiving instruction in her own language, ASL, as opposed to relying solely on lip-reading. When the school denied the request, the Rowleys filed a complaint pursuant to what is now known as the Individuals with Disabilities Education Act [IDEA].
After a series of lengthy court proceedings, the dispute between the Rowleys and the school district ended up in the Supreme Court. In the most important IDEA ruling to date, the Court ruled that Amy was not entitled to a sign language interpreter because her excellent grades made an interpreter unnecessary. “[I]f personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction,” wrote Justice Rehnquist, “the child is receiving a ‘free appropriate public education’ as defined by the Act.” Accordingly, as long as the child progressed from grade to grade, the school had done its job under the law.
The holding in Rowley is troublesome because it demonstrates that there is a complete lack of awareness, in the legal system, of Deafness as a cultural identity with its own language. This is evident in the Court’s discussion of what constitutes “meaningful access” to education. The Court stated that Congress “did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful.” The fact that Amy could not access the curriculum in her own language is conspicuously absent from the Court’s discussion of meaningful access to education. The Court viewed sign language interpreting as a service that would mitigate any deficits Amy’s deafness created in her ability to learn. Because Amy performed “better than the average child in her class and [was] advancing easily from grade to grade,” there was no need for the school district to provide her with an interpreter.
To this day, Rowley remains the most important case on the substantive provisions of the IDEA. Federal courts often cite Rowley in IDEA cases due to its precedential importance, but for disability rights activists, and members of the Deaf community, Rowley represents a missed opportunity to address society’s general lack of awareness and misguided assumptions about disability. Unfortunately, the Supreme Court has continued to discuss disability through the lens of the medical model. In cases such as Sutton v. United Air Lines and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court held that the plaintiffs’ impairments did not limit them enough to qualify as disabilities under the Americans with Disabilities Act of 1991. This narrowing of the definition of disability made it nearly impossible for plaintiffs to qualify as individuals with disabilities under the Act. The Court’s preoccupation with the medical aspect of disability was a needless distraction from the Act’s purpose of providing legal recourse to a historically marginalized group of people that had no prior way to redress discrimination.
Congress enacted the ADA Amendments Act of 2008 in direct response to Sutton and Toyota. This Act broadened the definition of disability and restored the original purpose of the ADA. Although the 2008 Amendments nullified the damage of Sutton and Toyota, their enactment is another reminder of the lack of cultural competency in the courts. Individuals with disabilities have united around a shared cultural identity that has at its core the rejection of the medical model of disability. The Disability Rights Movement celebrates this culture and works to change society’s attitude towards people with disabilities. Litigation is critical to the movement. However, the movement’s goals cannot be achieved in a legal system that ignores this cultural identity and insists on viewing disability as a medical deficit. Until the courts recognize this cultural identity, it will remain counter-productive to the Disability Rights Movement for individuals with disabilities to seek justice in our legal system.
Robert Borrelle, in addition to studying law, is pursuing a Master’s Degree in Cultural Foundations of Education at the Syracuse University School of Education.
Suggested citation: Robert Borrelle, Calling for Greater Awareness of Disability Culture in the Legal System, JURIST – Dateline, Feb. 6, 2012, http://jurist.org/dateline/2012/02/robert-borrelle-disability-awareness.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at email@example.com
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