"Standard Accommodations:
The road to universal disability"
by Walter Olson, from Reason Magazine
I've sometimes wondered why upper-middle-class
politicians treat the disabled-rights lobby with such
gingerly deference, and now I think I've figured out the
answer: that lobby may soon represent a majority of their
constituents.
Last April the Hartford Courant reported that nearly
one in three high school students in the famously
affluent Connecticut town of Greenwich are now officially
regarded as "disabled." It seems competitive Greenwich
parents these days no more think of sending the
youngsters back to school without a disability
designation than without a new parka and pencil kit.
If you want an advance peek at how disabled-rights
law might play out in the rest of American society a few
years down the road, look what it's doing to American
education right now. Driven by laws which make
disability designation the key to a long list of
entitlements from private tutoring to extra time on
tests, special ed is busting school budgets nationwide.
In Connecticut, farther down this particular road than
most states, special ed by itself now consumes, on
average, 18 percent of school budgets; in rural Voluntown
the figure has hit 29 percent.
Parents want the best for their kids, and the
advantages of a medicalized label such as "learning
disability" can be substantial, including individually
tailored learning plans, laptop computers, and the right
to take notes when other students can't. "You get a lot
more one-on-one time with your teachers," said one
Greenwich student. So friendly experts hang out their
shingles advertising their diagnostic skills, while
entrepreneurial lawyers organize parents to press their
rights.
Under federal law, schools that want to resist
demands for special-ed services must jump through
elaborate due-process hoops and risk "one-way" attorneys'
fee awards (the school system pays both sides' lawyers if
it loses but collects nothing if it wins). Between 1990
and 1994, the number of formal special ed appeals tripled
in the Nutmeg State. "I used to be able to put a year's
worth of hearing records in one file cabinet," state
special-ed attorney Theresa DeFrancis told the Courant.
"They are in five or six cabinets now."
For ground-level educators, the hassle is
astounding. A few months ago one of my neighbors, the
principal of a middle school in a nearby Connecticut
town, told me he now is obliged to spend half his time on
special-ed issues. I thought he had to be exaggerating,
yet the Courant spoke to other principals who estimated
they too were spending half their time on such demands.
School officials are often reluctant to give
offense, but many in this case were willing to be
outspoken. "Nobody is slow anymore," commented Norwalk
superintendent Ralph Sloan. "If you are not in the fast
track, you have a disability." "Anybody can be 'special
education.'", added Middletown special-ed chief Mariann
Rossi-Ondusky. "I've just got to give you the right
tests."
Reported diagnosis rates vary drastically from town
to town, with the apparent incidence of learning
disability, for example, running from less than 3 percent
to nearly 20 percent. Curiously or not, some of the
state's lowest reported percentages came from Bridgeport,
a city almost as famous for poverty as Greenwich is for
wealth. To the extent that childhood disabilities
correlate with public health woes -- deficits in
nutrition or prenatal care, for instance -- you'd expect
Bridgeport to have the high numbers and Greenwich the
low. But then, not many Bridgeport parents can afford
those pricey lawyers and child-development experts.
Having grown to expect special assistance in grade
school, the new Disabled Generation is apt to level
similar demands as it moves up through college and into
the workplace. Already 5 percent of Connecticut kids, up
from 2 percent a decade ago, are getting accommodations
on the SAT, mostly extra time.
At the level of professional and occupational
testing, the legal sparring is intense. In a widely
watched case last fall, the U.S. Court of Appeals for the
Second Circuit ruled that the New York State Board of Law
Examiners had violated Marilyn Bartlett's rights by
refusing her further accommodation. Bartlett had already
failed the bar exam five times, despite such
accommodations for her learning disability as a 50
percent time bonus, a private room, and an assistant to
read the exam questions aloud.
What the law is really doing in such cases, it seems
clear, is forcibly redefining old standards of
competence. Just as the PGA wrongly imagined until the
Casey Martin case that they had the right to define golf
in the traditional manner to include walking from hole to
hole, so the bar examiners must be disabused of the idea
that they can hold aspiring lawyers to traditional legal
skills such as the ability to assimilate large amounts of
written material quickly. The same lesson is being
taught to the administrators of medical exams, who are
nowadays steadily yielding ground to the demands of
would-be M.D.s with L.D. diagnoses in their hip pockets.
Don't assume the institutions downstream -- the
hospitals or law firms who hire the newly fledged doctors
and lawyers -- will be able to act as backstop when
standards decline. In general, it's considered a
violation of the law for an employer to count against an
applicant that his transcript indicates a record of
accommodation, or to ask what kinds of accommodations
were given or what disabilities were claimed. In fact,
disabled activists have been pressing for the elimination
of the loathed asterisk indicating that a test was taken
under nonstandard conditions, arguing that it violates
the applicant's privacy rights.
After her excellent August 1997 New Republic article
criticizing the boom in college-level accommodation
demands, writer Ruth Shalit came under attack from
disability activists. Typical was an Ohio State law
professor's overheated view of the supposed consequences
of Shalit's views: "Better to let them be uneducated and
unemployed, drawing on our welfare rolls." From this and
a thousand similar statements by advocates, you might
conclude that whatever the high costs and whatever the
damage to standards of competence disabled-rights laws
might be doing, they can at least be defended as
effective in enabling disabled persons to work rather
than sink into dependency on government checks.
But that's not so. The newest study on disabled
employment, released last summer, confirms what informed
observers already realized: the disabled-rights laws
passed in the last two decades, including the Americans
with Disabilities Act and various others, have been an
utter failure at their announced aim of moving disabled
persons into work. The more laws we pass in the name of
disabled rights, in fact, the more disabled people seem
to sit home jobless.
Last summer's bad news came from a Harris survey for
the National Organization on Disability, which found that
29 percent of disabled persons are employed full or part
time, down from 33 percent in 1986, notwithstanding a
decade-plus of the most intense legislation and activism
on behalf of the disabled, the centerpiece being the ADA.
Other studies confirm a drop in of labor force
participation by the disabled since the law's passage.
None of the numbers are perfect, and definitions of
disability vary widely from one study to another. But at
a hearing convened by the Civil Rights Commission
November 12, academic demographers agreed that the trend
is indeed a downward one.
The one exception -- seeming and temporary -- was a
set of Census Bureau figures released with great fanfare
in 1996; it showed jobless rates for the disabled falling
modestly by one measure between 1991 and 1994. As it
happens, however, those were years of strong recovery
from the trough of the 1991 recession, and the same rates
fell more sharply among nondisabled workers, which meant
the gap between the two groups actually widened. To this
day, some disabled advocates still cite the census
numbers to assert that the ADA "created hundreds of
thousands of jobs."
The deterioration of the job situation for the
disabled does not, of course, prove that the ADA has
actually made things worse. Quite possibly the numbers
owe more to the "welfare trap" effect in which
beneficiaries spurn work rather than give up their Social
Security benefits, including health coverage. But to
Russell Redenbaugh, a member of the U.S. Civil Rights
Commission (CRC), it at least suggests that the time has
come to examine some of the unintended effects the law
may be having.
In September, Commissioner Redenbaugh was the lone
member to file a dissent when the federal advisory panel
came out with a lengthy report rejecting second thoughts
about the ADA's effects and calling for -- what else? --
stepped-up enforcement. Pointing out that "the
definitions and concepts of Title I have been expanded in
almost every way imaginable, with the resultant
trivialization of 'disability'," Redenbaugh expressed his
fear that "laws and regulations that are designed to
enhance opportunity and expand rights often can end up
serving as constraints and limitations to both."
A Philadelphia investment manager and political
independent appointed to the CRC in 1990, Redenbaugh
brings a unusual degree of personal experience to bear on
the issue, being the only disabled member to serve on the
civil rights body since it was set up in 1957. (He was
blinded and lost most of the use of his hands in an
explosion when he was 17.) As a business person, he's
also familiar with the hiring process.
So it's worth paying attention when he says he
thinks one of the ways the ADA has backfired is by
forbidding employers from asking questions "likely to
elicit information about a disability" at any stage of a
job interview before an offer is made: "My own fear is
that the ADA implementing regulations can have a chilling
effect on the hiring of the disabled."
Provocatively, Redenbaugh's dissent includes a list
of sixteen extreme or remarkable ADA cases that have
reached courts around the country, many of which, he
writes, "defy credulity and are absolutely not what we
intended when we passed the law."
That's exactly the sort of thing that drives the
other side crazy: Disabled-rights advocates have
virtually tagged it as a hate crime to trade "horror
stories" about the statute, as some of us have been known
to do from time to time. It must take a certain quiet
courage for this seemingly mild-mannered public figure to
risk the kind of vilification he could face if the
disabled-rights community -- which, to put it mildly,
does not have a record of taking criticism gracefully --
identifies him as the equivalent of a "disabled Tom
Sowell."
Even if the civil rights establishment resists the
temptation to go after Redenbaugh personally, they're
almost certain to tune out his message. In doing so,
they'll put themselves in the role of the husband
stepping on the gas pedal in the old joke. "But,
Harold," his wife objects, "aren't we headed in the wrong
direction?" "Who cares?" Harold replies. "We're making
great time."
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