RIGHTS OF PEOPLE WITH DISABILITIES 

by Anita Silvers

San Francisco State University



(To be published in THE OXFORD BOOK OF PRACTICAL ETHICS, edited by Hugh

LaFollette, Oxford University Press, 2001.)



1.The Disability Problem 1.1 Seeking The Right To Be In The World

      Writing two years after the passage of the 1964 Civil Rights Act,

Jacobus tenBroek argued that " . . . nothing could be more essential to

personality, social existence, economic opportunity ... than ,,, the legal

right to be abroad in the land."(tenBroek 1966: 842)  TenBroek held

degrees from the law schools at Harvard and Berkeley, had taught at the

University of Chicago's law school, and was a tenured U.C.-Berkeley

professor when he wrote the classic law review article entitled "The Right

To Be in the World".  Despite his status as a nationally acclaimed legal

scholar, tenBroek himself had no legal right to be abroad in the land.  In

virtue of his being blind, his claim to the right to be in the world was

unrecognized in law and in life. 



        TenBroek had no legal recourse when restaurants declined to serve

him, or banks refused to let him deposit his money, or he was denied

carriage on a train or plane for which he had purchased a regular ticket,

simply because he was blind.  Regardless of his competence and

accomplishments, he expected to be held the responsible party if, in

traversing the university campus, he fell into any open pit thoughtlessly

left unguarded by a repair crew or was injured in a collision with a

recklessly speeding campus-owned vehicle. Because he was disabled,

tenBroek had to absorb harms against which nondisabled peers were

protected.



       At the time when civil rights protections were specified in statute

for other minorities and women, the disabled had been passed over. 

Although tenBroek could not know it, the next two decades would witness

many failed attempts to extend existing civil rights statutes to safeguard

disabled people. The reasons were both political and conceptual, with

traditional civil rights groups sometimes joining the usual opponents of

government regulation to block adding disability discrimination to the

list of offenses against citizens' civil rights.(Burgdorf, 1991)

 

      Representatives of the groups protected under earlier legislation

feared opening it to amendments protecting the disable might diffuse the

focus of antidiscrimination enforcement. Moreover, some representatives of

groups traditionally disadvantaged on the basis of race or sex simply

could not conceive that people with disabilities were similarly mistreated

(Burgdorf, 1991). They thought of the disabled as being naturally

deficient rather than artificially limited by biased social practice. They

thought of disabled people as definitively incompetent, even while

complaining about stereotyping when this same ascription was applied to

women and racial minorities. To make disability a category that

activates a heightened legal shield against exclusion, it was objected,

would alter the purpose of legal protection for civil rights by

transforming the goal from protecting opportunity for socially exploited

people to providing assistance for naturally unfit people (Burgdorf,

1991). 



       TenBroek showed that standards of care, conduct, risk and liability

for the disabled were inferior to those nondisabled people

enjoyed.(tenBroek, 1966: 842)  Such exclusions seemed to him inconsistent

with the progressive policy President Johnson declared, and the Supreme

Court affirmed, in supporting the Civil Rights Act, according to which

denying equal access to public facilities to any group of citizens is a

wrong and a burden on commerce. "According to the policy of

integrationism, the disabled are not to be confined to their houses,

asylums, and institutions -- threatened, if they emerge, with not only

social

                           

sanctions but legal sanctions as well, in the form of legal barriers,

disadvantages, and inadequate protections. ... Such confinement would in

effect be a form of house arrest." (tenBroek, 1966: 848-849)

 

1.2 Historical Exclusion of People With Disabilities

        The system of removing people from the community because they are

disabled took hold in the United States in the middle of the last century. 

Before 1820, disabled people stayed with their families or found places

elsewhere in their immediate communities. During the next forty years,

however, residential schools meant to train these individuals so that they

could be more productive sprung up, supported by charitable donations and

government funds. Up until the Civil War, these institutions focused on

improving the skills and therefore the productivity of corporeally or

cognitively impaired people, and on giving them access to the word of God,

in order to return them to the community to earn their own livings. 

(Trent, 1994; Baynton, 1996, Carlson, 1998) 



       After the Civil War, residential schools evolved into custodial

facilities comparable to those that had existed for centuries in Europe. 

Several contributing factors promoted the change. Waves of immigrants

arrived to provide labor, making it harder for disabled people to support

themselves. As more jobs were factory-based, caring for an impaired family

member interfered more and more with wage earning. So custodial

institutions were enlarged to relieve private citizens of the burden of

caring for the disabled.(Trent, 1994; Carlson, 1998). These "homes" then

vigorously pursued the institutionalization of less impaired individuals

who, once confined, spent their lifetimes being caregivers

withoutremuneration for more seriously dysfunctional inmates. For

instance, when a new young superintendent had inmates at the Iowa Home for

Feeble-Minded Children assessed in the early 1950s, he found more than

fifty with normal IQs higher than some of the employees. They had been

institutionalized because families, physicians, or public officials found

their anomalies disturbing. (One had been institutionalized for sixty

years because of his peculiar eyerolling.) (Trent, 1994)



       For a century, the custodial system went unchallenged.  But in the

mid-twentieth century images of its inhumanities were widely circulated by

the media to the public. Just after World War II, Life magazine's

"Snakepit" story revealed the horrors of the treatment of patients in

psychiatric institutions with images reminiscent of photographs of Nazi

concentration camp survivors. PM, a progressive New York daily, ran

pictures of the horrors of Letchworth, an asylum for cognitively impaired

individuals.  A quarter decade later, after the Civil Rights Act, the

disgusting conditions of Letchworth persisted. Within a few months of

being committed to the institution, all inmates contracted hepatitis

because they were forced to live in each others' filth. Many similar

exposes, illustrated with haunting images, appeared in printed or

televised news throughout the second half of the twentieth century. 



     It took another quarter century, however, for the courts to affirm

that this custodial system could be discriminatory as well as inhumane. In

Olmstead (1999), the U.S. Supreme Court was for the first time able to

invoke an explicitly applicable federal civil rights statute --- the 1990

Americans With Disabilities Act (ADA) --- in deliberating on this matter.

In the Findings that preface the ADA, the Congress stipulates that

"historically, society has tended to isolate and segregate individuals

with disabilities, and, despite some improvements, such forms of

discrimination against individuals with disabilities continue to be a

serious and pervasive social problem."(ADA, 1990) Further, the ADA defines

as discriminatory the failure to integrate the dispersion of goods and

services to disabled people into their distribution to the broader public.

Providing different goods or segregated services is nondiscriminatory only

if there is no other possible way to offer equally effective opportunity

to a disabled individual.



        In Olmstead, the court declared that "... unjustified

institutional isolation of persons with disabilities is a form of

discrimination" and that recognition of the discriminatory potential of

the custodial system " reflects two evident judgments." First, by

confining individuals capable of living in the world to institutions and

isolating them, the system perpetuates unwarranted assumptions about their

capability and worthiness. Second, confinement deprives these individuals

of family relations, social contacts, work options, economic independence,

educational advancement, and cultural enrichment. If people with

disabilities must relinquish participation in community life to receive

services, but nondisabled people need not make similar sacrifices to

receive equivalent services, the Court ruled, dissimilar treatment of a

discriminatory nature exists. (Olmstead, 1999) 



    Only recently has the statutory climate encouraged the courts to

recognize that segregating the disabled is discriminatory and that people

with disabilities have the same right as other people to be in the world.

In the United States, even in an era of substantial commitment to

furthering civil rights, it took 0�;�3 several decades to stimulate this

process. Eventually, disability advocates abandoned efforts to integrate

recognition of their rights into existing civil rights statutes. They

turned instead to laws specifically addressed to the disabled, That

law-making process began with the Architectural Barriers Act of 1968 to

mandate access to the built public environment and reached full expression

in the 1990 Americans with Disabilities Act. Even so, the bias of which

tenBroek complained has yet to be dislodged from the justice system. To

illustrate, a recent law review article revisited the tort law issues

tenBroek addressed and concluded that the goal of integrating people with

disabilities into society will remain a distant one because courts still

do not comprehend what is entailed in the legal recognition of their right

to live in the world. (Milani, 1999)  Further, each year brings new

political and legal action aimed at reducing their statutory protection.



1.3 The Conceptual Exclusion of People with Disabilities

       TenBroek believes our political and legal practice should evolve to

recognize the right of disabled people to full and equal places in the

world. This proposal poses some enormous challenges to everyday thinking.

The conceptual problems are as vexatious in the United States as in

nations which do not have civil rights traditions. Before we can fully

embrace and apply the idea that disabled people are equal, we must

eliminate bias from the ways we conceptualize and communicate about

disability.  The ways we currently think and talk about disability create

barriers by making the integration of people with disabilities appear

unimaginable, impossible, or undeserved. Our conceptualizations of

disability lead us to speak or think as if being disabled were

definitively bad.



     The source of the badness of disability commonly is thought to be its

connection with physical, sensory, or cognitive impairments, those

differences that mark the disabled as being other than species-typical.

But what do we mean when we talk about impairment?  By definition, an

impairment may be an absence, deletion, omission, reduction or diminution.

These states are anomalous in that they differ from what is typical, but

anomalies are not necessarily harmful, disadvantageous or otherwise bad.



     However, an impairment may also be thought of as a weakness,

inadequacy or loss. In conceptualizing disability, we too easily slide

down a slippery slope from attributions of anomalies to verdicts of

badness. To characterize an anomaly as a weakness or loss improperly

closes by definition what should be an open empirical process of

particularized valuing, for whether a particular physical or cognitive

difference is unfavorable should �1�3 be an open question. Thus, the

commonplace elision of the first meaning of "impairment" with the second,

so that the negative value of disability is assumed rather than

investigated, is a source of bias. 



     Because listening, seeing, walking, and other such performances are

commonplace in most people's daily lives, we imagine that the sheer

exercise of the faculties that support them necessarily gratifies us. From

this assumption, we stray to the views that sight, hearing, and mobility

are good in themselves, and, consequently, their absence constitutes a net

loss of intrinsically valuable experience and a reduction of the quality

of life. In this regard, it is argued that not being able to hear music or

look at paintings is supposed to be intrinsical ly bad.  Yet no one

questions the quality of life of the many nondisabled people who could

enjoy these pleasures but pass them up. It seems biased to say foregoing

these pleasures is deleteri ous to those who cannot experience them but

indifferent to those who can but don't experience them. 



        There are other common ways of speaking that make it difficult for

most people to talk about or think of a disability as anything but bad. To

illustrate, genetic counselors call the probability that a baby will have

a disability a "risk". This rhetorical convention places prospective

parents on the defensive if they do not display reservations about having

such a child. They are expected to justify continuing "risky" pregnancies

that may result in children with disabilities, but the discourse does not

equally require them to defend pregnancies with no such prognosis.

(Silvers, 1998b) In other words, the discourse exerts conceptual pressure

by putting the parents on the defensive if they do not exclude the option

of living with (a child with a) disability.



       A series of exchanges between philosophers Bryan Magee and Martin

Milligan - published under the title On Blindness (Magee and Milligan,

1995) - further illustrates the conceptual burden borne by whoever remains

neutral about disability or questions the assumption that it is bad. Magee

wanted to discover whether someone like Milligan, blind nearly from birth

and with no memory of seeing, can understand what visual language means

and what is conveyed by other people's reports of visual experience. 

Magee hypothesizes that blindness is not just a sensory impairment, but a

significant epistemic deficit as well.

          

      Sight is useful, Milligan acknowledges. Nevertheless, he

demonstrates that, despite his impairment, he can understand what is

involved in, and is the product of, visual judgment: "You seem to have

found my claims that born-blind people can understand, at the very least,

a major part of the meaning of visual terms, and that many sighted people

grossly exaggerate the importance of sight, somewhat exasperating in their

presumption. (B)ecause the sense of which they make overwhelmingly the

greatest use is sight, sighted people just cannot imagine how blind people

can manage without it."  (Magee and Milligan, 1995: 42 - 43). 



        Magee, though, insists that whoever considers blindness a

difference rather than a handicap is "refusing to face the reality of his

situation" (p.  99). He advances his case not through argument but by

using rhetorical conventions that privilege the sighted over the blind.

For him, people with disabilities must bear the burden of proving they are

not incompetent. Magee never meets Milligan's argument that blind people

enjoy a more comprehensive standpoint on the subject than sighted people:

"(W)hereas most sighted people will have known few if any blind people,

and (if any) will often not have known them very well, born-blind people

will usually have known a lot of other blind people, including blind

people who have had sight, and also a lot of sighted people, and will have

known some of both groups very well. (B)lind people are apt to know a good

deal more about sight and sighted people than the latter can know about

blindness and blind people." (Magee and Milligan, 1995: 49) 





       Milligan explains that erroneous conceptions of blind people's

competence occur because sighted people, who are in the majority, have

come to rely on vision instead of practicing the full range of human

skills: "... because sight is in modern conditions so much more efficient

than the other senses, sighted people have got into the habit of

disregarding a lot of the information the other senses provide, or can

provide."(Magee and Milligan, 1995: 44-45) Of course, blindness does not

inherently enhance hearing, nor deafness sight, any more than paraplegia

inherently builds up the shoulders and arms. What deafness does do,

however, is invite increased attentiveness to effective looking, as

blindness does to proficient listening. Looking or listening with greater

skill increases the value realized by these perceptual modes. So people

with certain kinds of sensory impairments may realize more epistemic value

than is typical for members of the human species, in that they are

informed by sensory data nondisabled people disregard. Thus, even if an

impairment occasions a specific disadvantage, we should not assume it

results in a net loss of capability or of quality of life



       The problem, then, is that Magee assumes that species typical

behavior constitutes the appropriate standard for competence. But this

kind of "normalizing" is a bias that violates Hume's prohibition against

conflating "ought" with "is", that is, against unreflectively equating

what is typical with what is desirable. As Alexander Rosenberg points out,

modern biology suggests that there is no "base-line repertoire of

abilities common to normal agents" that is adaptive for the

organism.(Rosenberg, 1986: 5) In imposing such a groundless standard, the

dialogue inflicts a grave inequity. The heaviness of the burden of proof

imposed on those who, like Milligan, approach being disabled

nonjudgmentally is patently unfair in comparison to the light burden of

proof placed on those who, like Magee, normalize by assuming without

proving that being deaf or blind or crippled is intrinsically bad. 



       This bias is not confined to philosophical dialogue. It pervades

many rhetorical domains. Often, specific protections and remedies must be

legislated to relieve disabled people from such bias. For example,

tenBroek demonstrated that common law tort theory is biased against blind

people when they are required to adhere to an exceptionally high standard

of care in respect to avoiding injury, so much so that they can be

convicted of contributory negligence simply by being in a location where

they are endangered by other people's thoughtlessness. To flush out this

deeply embedded bias, the National Foundation of the Blind, over which

tenBroek presided, lobbied for "white cane laws". These state statutues

decree that blind (and deaf) pedestrians have the rights and privileges of

other pedestrians, including the right to go abroad in the land without

signaling their blindness or relying on guides. Thus these statutes

abrogate the common law rule imposing an unduly high standard of

precaution on disabled people. 



       Rectifying such bias through legislation protects against

deviations from species typicality being prsumptively designated as bad

and thereby being assumed to underwrite unfavorable treatment. It does

not preclude acknowledging that seeing well, hearing well, and moving

well are valuable. Nor does such assurance ignore the fact that

impairment often is experienced as a loss by those who become disabled,

especially later in life. Impairment that affects a particular mode of

performance may preclude exercise of some of a person's special talents

or enjoyment of some of her personal pleasures. Eliminating

such accustomed performance is likely to disrupt the core of how one 

lives one's life, just as losing any other familiar lifeplan component,

aloved child or spouse, an important opportunity or possession, a

respected community role, would do. These considerations reveal

thatbadness lies in the dislocation of familiar patterns, which may but

need not be occasioned by disability, rather than in disability itself. 

(Fuhrer, 2000: 484)



1.3.1 Does Disability Diminish Quality of Life? 

      The onset of disability can disturb the flow of individuals' lives.

Such persons' distress understandably is magnified when they are subjected

to biased conceptualizations that place them on the defensive, when their

right to be in the world is ignored or denied, and when they must battle

for recognition of their competence. They also are stressed by policies

shaped by the assumption that to have a disability makes a person's life

inherently less valuable.



       For instance, in 1927, the U.S. Supreme Court declared that the

state has a legitimate interest in preventing the births of disabled

people whose existence detracts from the welfare of the community (Buck v.

Bell, 1927).  As late the 1930s, more than half the states in this country

had laws on the books encouraging sterilization of people with

disabilities, usually those with developmental disabilities, but also

those blind or deaf (regardless of whether their conditions were inherited

or  accidental). California's eugenic sterilization law may have

inspired the Nazi program of euthanizing members of these same

groups.(Kevles, 1998: 3) In Western Europe, eugenic practices existed well

past the half century mark. Recently, the world has learned that programs

of sterilizing people designated as disabled accompanied the post-World

War II expansion of generous social service policies in Scandinavia and

the Netherlands.  (Silvers et. al, 1998).



     These programs, Kevles reports, were predicated on the proposition

that disabled people burdened the community by proliferating at a rate

that placed great pressure on social resources and stability. (Kevles,

1998: 3) In health care practice, suggests bioethicist Leon Kass, a

similar attitude propels the assumption that the lives of people with

disabilities makes them burdensome to themselves.(Kass, 1983: 400)  But it

is illegitimate to assume that disability is necessarily burdensome.

Despite the depleted opportunities they are offered, many disabled people

equal or excede the typical social contributions of nondisabled

individuals. And though impairments may preclude some activities, such

limitations need not have a deleterious impact on people's well-being. 



       Not every limitation is a loss - and certainly not an intolerable

loss.  We know, for instance, that the absence of limitations can also

lead to suffering.  We may well be better off if we were be focused on a

few fulfilling options than to be torn with indecision by many glittering

ones. It is more important to learn to overcome disadvantageous

circumstance when faced with limited, less than desirable, options.

Because one has only one life to plan, the ultimate difference between

having begun with a single, several, or many equally satisfying life plan

opportunities may be negligible.



      It thus is problematic to identify disability with diminished worth

of life. In fact, individuals who are experienced in living with a

disability very often give a much higher rating to the quality of life

disabled people can achieve than the nondisabled do (Murray 1996). The

difference that a person's standpoint makes in how a health condition is

 experienced foregrounds an important issue about conceptual bias. 

"(M)any of the outcome measures (used in health services research)

reflect the hegemony of providers' and payers' values," and only

equivocally those of disabled people.(Fuhrer, 2000: 487) Constructing a

univocal standpoint usually means defining away the perspectives of

disabled people so that these have no weight within the assessmen 

system. "These models do not lend themselves to providing a holisti 

portrayal of people's living with a disability." (Fuhrer, 2000: 483)



     There are further problems with the way disability is assessed in

health care service allocation. Attempting to calibrate his

disability-adjusted life year(DALY) scale, Murray reports that, if forced

to choose between extending the life of a larger number of blind people

than seeing people, most nondisabled people choose to benefit the

larger group, suggesting that they assign the same value to each life

whether the individual is disabled or not. However, the same subjects

think it more important to restore sight to a blind person than to extend

a nondisabled person's life by a year. Murray interprets these results as

incoherent, and therefore as of no relevance to the appropriateness of his

scale. He thinks his respondents inconsistently hold both that disabled

people's lives are identically valuable to nondisabled people's, but also

that eliminating a disability makes a person's life more valuable than it

was with the disability.(Murray, 1996: 36) As is characteristic in the

health care service discourse, this interpretation fails to distinguish

between the burden of disability and the burden of life with disability.

It is not inconsistent to think that being blind is a burden, an obstacle

one must constantly work around, but that being alive while blind is not a

burden, regardless of the challenges associated with being blind.

Analogously, being poor usually is a burden but this does not entail that

it is better not to live at all than to live with poverty. 



     Murray reminds us that the limitation associated with an impairment

may differ depending on environment. The same impairment may be more or

less disabling in an advanced technological society than in a simple rural

one. It is well known that mild mental retardation does not disable women

in environments in which a woman's role is restricted to cleaning,

cooking, and bearing children. It would be inequitable to allocate

resources to rich societies to prevent a type of impairment but not to

poor ones, Murray believes, even though "in many cases (programs) to avert

impairment could exacerbate inequalities" by eliminating disabled people

from reproductive roles. (Murray, 1996: 33). Surely, however, there is

nothing inequitable in acknowledging that an impairment is no burden at

all where it is not experienced as one. Indeed, it is more inequitable to

treat people as dysfunctional when they actually are not than to refrain

from intervening where intervention harms them.



     A medical intervention is unlikely to be experienced as beneficial by

individuals who were not dysfunctional prior to it and are no more

functional, relative to their environment, as a result of it. To

illustrate, adults with congenitally anomalous limbs, such as those

occasioned by the pre-natal presence of thalidomide, often believe

themselves to have been injured as children by being fitted with

dysfunctional artificial arms and forbidden to develop the much more

functional method of manipulating objects with their feet.(Baughn et. al.,

2000) Undergoing a medical intervention almost always costs the patient

some pain and risk. As long as the patient is competent, commensurability

demands that the benefit offsetting the patient's cost be in terms of the

patient's own experience of good. 



       But this perspective usually has been disregarded in favor of

a medical point of view that gives normality priority over

functionality.(Fuhrer, 2000: 482) From the medical perspective, access to

the world is achieved by functioning in a species-typical way. So on this

view, claims to equality either are predicated on the claimants'

species-typical functioning, or else are directed toward enabling the

claimants to function at typical levels and in common ways.



2. Solving the Disability Problem 

2.1 Models of Disability 

2.1.1 The Medical Model  

       In our era, a medical model of disability has pervaded political,

legal and other thought as thoroughly as it has dominated health care

services policymaking. This model has important implications for the

assignment of rights. On it, people are disabled when they are

biologically anomalous - when they are less functionally proficient than

is typical for most humans.  Norman Daniels puts it this way: "The basic

idea is that ... diseases (I here include deformities and disabilities

that result from trauma) are deviations from the natural functional

organization of a typical member of a species"  (Daniels, 1987: 302). The

job of medicine then is to maintain or restore species-typical

functioning. 



     This medical model is applied to defeat claims that disabled people

have rights to equitable access to the opportunities of the world. It is

not reasonable to expect such access in the absence of species-typical

functioning, Daniels claims: "Life plans we are otherwise suited for and

have a reasonable expectation of finding satisfying or happiness-producing

are rendered unreasonable by impairments of normal functioning ...  (I)f

people have a higher-order interest in preserving ...  opportunity ...,

then they will have a pressing interest in maintaining normal species

functioning by establishing institutions - such as health care systems -

that do just that"(Daniels, 1987: 302). 

 

     What could be a more natural, and modest, expectation than the

prospect of individuals desiring to function as their species typically

does? Broad-based public support for policies that reduce whatever

biological anomalies or singularities hinder adherence to the

species-typical functional standard seems natural. As deTocqueville

remarked, the inclination to create fair opportunity by leveling the

players rather than the playing field is a strong force in egalitarian

societies. There is, nevertheless, an abiding question about the propriety

of making homogeneity the price of opportunity. Normalizing policies can

worsen the position, or otherwise oppress, the very individuals they

purport to improve by decreeing that inequality of opportunity is the

unavoidable consequence of not functioning in the normal, typical or

customary way.



     Daniels supposes that an objective biological principle warrants

restoring impaired individuals so that they function typically for the

species (Daniels, 1987: 303). However, Ron Amundson challenges

Daniel's view.  According to him the idea of normal function has no

foundation in objective biological fact because very large amounts of

heritable variation occur in natural species.(Amundson, 2000a: 36) In

modern biology dogmas about determinate species design have given way to

appreciation of rich ranges of variation. No nature-based justification

underwrites making social justice conditional upon normality (or upon

species- typicality, which often is confused with normality). That there

are average, common or typical modes and levels of human performances does

not make these the normal or natural modes and levels for humankind

(Sober, 1980). Biology tends to eliminate dysfunctional individuals, not

to repair them,



2.1.2 The Social Model

      The medical model understands the reduction of opportunity

occasioned by disability in terms of the disabled's personal deficits, but

people with disabilities often interpret their situation differently. They

understand their limitations in terms of social rather than personal

deficits. This social model of disability transforms the notion of

"handicapping condition" from a biological state which disadvantages

unfortunate individu als to a state of society which disadvantages an

oppressed minority. The social model attributes the dysfunction

experienced by people with disabilities primarily to hostile social

arrange ments. For instance, Richard Hull examines the condition of

disabled people in Britain. Like other nations, social arrangements in

Britain are such that people with disabilities incur significant extra

cost to meet the conditions for social participation. Yet, disability

welfare payments are insufficient to meet this cost, and institutional

discrimination against disabled people is prevalent throughout the labor

market.(Hull, 1998: 201-202) Hull observes: "Contrary to the conventional

view, ... functional limitation does not always secure or guarantee

disadvantage. ,,, society can be equally to blame, or more to blame, in

many cases." (Hull, 1998: 203) 



        On this social view of disability, socially constructed barriers

are the primary disadvantage faced by people who do not function in

species-typical ways. These obstructions range from discriminatory

practices such as disability-based denial of employment through

thoughtlessly inaccessible design such as the installation of steps rather

than ramps. Sometimes the absence of adequate support services and health

care benefits also is construed as a barrier to the effective functioning

of people with certain kinds of impairments.(Silvers et. al., 1998) 



       From this perspective, the preeminent strategy of the medical model

- namely, altering biologically anomalous people to make them

species-typical or normal - unfairly disparages personal traits central to

the identity of individuals with disabilities. Further, by placing a

premium on medically altering them so as to bring their modes of

functioning into better conformity with species-typical functioning, this

medicalized approach to disability can be coercive and can expose the

disabled to risky or ineffective medical interventions.  

Consequently, from this viewpoint, reforming social arrangements to

achieve equitable opportunity and accessibility is the best route to

reducing dysfunction in biologically anomalous people. 



       The social model thus entails that the solution to the "disability

problem" lies in fully realizing disabled people's right to be in the

world.  There are two competing schools of philosophical thought about

this right. The first rests firmly on the social model by arguing that

"injustices may be better remedied by changing social norms and the

structure of public goods than by redistributing resources."(Anderson,

1999: 336) On this first view, enabling disabled people to be in the world

is grounded in the collective good of achieving a democratically equitable

social order based on principles that express respect for everyone. This

approach emphasizes participatory rights that give disabled people claims

to inclusion in social practice and to revision of such practice if needed

for access.



     The second straddles the medical and social models by revising the

distribution of private goods to improve disabled individuals' personal

capacity to cope with existing social norms. On this second view, disabled

people's right to be in the world is grounded in the individual good of

achieving personal satisfaction based on principles that promote

well-being for everyone.  This later approach claims the disabled are due

compensatory rights to repair their deficits, relieve their needs, or

mitigate the consequences of their losses. 



2.2 Disability Rights 2.2.1. Disability Rights as Participatory Rights

     Philosophers like Elizabeth Anderson (Anderson, 1999), Anita

Silvers(Silvers, 1995, 1997, Silvers et. al.,1998) and Iris Marion Young

(Young, 1990) all take justice to be about interpersonal respect and

inclusive social participation. They argue that to treat disabled people

equally requires reshaping the practices that exclude them.  From a

disability perspective, physical or cognitive limitations are not absences

of talent, but instead are constraints upon the functional modes through

which talents are exercised. Social arrangements that offer equivalent

prospects of success to people of similar talent and ambition provide fair

equality of opportunity. Fair equality of opportunity requires that people

with similar talents should enjoy equitable access to the necessary social

conditions for realizing their talents, regardless of whether their

functional modes are normal or anomalous. 



       On this kind of view, equality is a social relationship which is

free of exclusion, coercion, and oppression. Anderson and Silvers follow

Iris Marion Young in identifying inegalitarianism with claims about the

necessary dominance by some social groups of others, usually on the ground

that the former have superior intrinsic worth while the latter are

incompetent or otherwise intrinsically inferior.(Silvers, 1995, passim;

Anderson, 1999: 311-312) To secure equality, the social patterns in which

people interact, and through which personal  goods are actualized and

interchanged, must express respect for everyone alike, whether fortunate

or unfortunate, judicious or reckless, through mutual, reciprocal

consultation and action. (Anderson, 1999: 313) 



       Of course, functioning as a social being requires functioning as a

human being, which involves effective access to the means of sustaining

one's biological existence and agency. It also requires effective access

to the means of being productive, of developing talents, and of forming

relationships in civil society. (Anderson, 1999: 318) Therefore,

regardless of whether one is typically or anomalously circumstanced,

everyone equally has a right to social arrangements that provide the

enabling conditions for these fundamental capabilities. (Anderson, 1999: 

331) In this way, democratic equality matches remedy to injus tice. If, as

tenBroek describes, the fundamental injustice done to the disabled is to

exclude them from the world, the remedy lies in assigning them the direct

right to the means of inclu sion, not the circuitous right to be

compensated for exclusion by gaining satisfaction in some alternative way.

(Anderson, 1999: 334). 



      In this spirit, Anita Silvers proposes a test for the justice of

specific social practices to see whether their exclusionary aspects grow

out of the dominance of nondisabled people's convenience and tastes.

"Historically counterfactualizing" is a conceptual test which involves

asking whether a practice would be the same if the disabled individuals it

marginalizes were the majority, not a powerless minority, of people. Its

purpose is to free our imaginations from the constricting routine of

institutionalized behaviors so that we are not misled into assuming that

the familiarity of a practice entails signals its biological or economic

necessity. (Silvers, 1995, 1998, 2000, Silvers et. al. 1998) 



      Historical counterfactualizing indicates whether, by broadening

assumptions about the variety of modes in which individuals achieve

function, we can and should redesign a practice so that anomalous

individuals can partake of the collective good it secures. For instance,

the practice of privileging visual over aural and tactile media for

storing data disregards the functional modes in which blind and dyslexic

individuals retrieve information. This exclusionary practice is of no

moment to the majority of sighted users. If, however, individuals for whom

looking at texts is dysfunctional were the majority, the relative ease of

storing and conveying information in a variety of media would make

offering information in alternative formats the rule rather than the

exception, (Silvers, 2000) 



      Historical counterfactualizing helps us to identify disadvantage

that is the arbitrary artifact of social arrangements controlled by the

standard of normality. It facilitates distinguishing arrangements that do

no more than conform to the dominant group's tastes and preferences from

arrangements that have more to recommend them. Tastes and

preferences are transitory. The practices they elicit need not be

perpetual. Exclusionary practices dominate, Silvers believes, because most

often they are comfortable for the majority and disadvantage only a

minority of people. Although the majority may be discomforted by the

evolution familiar but restrictive practices must go through to become

more inclusive, their social participation is not threatened by such

change. Thus, on balance, such social reform is less burden some for

members of the majority than enduring exclusion is for members of the

minority.



      While some alterations of practice to repair disadvantages suffered

by the disabled can be justified as countering arbitrary cultural

affinities for normality, historical counterfactualization also helps

identify customary components of disability policy that do not have such a

warrant.  To illustrate, the disabled have been disadvantaged in gaining

access to the workplace. So it sometimes is thought that equity calls for

providing compensatory income for them, as this is what they themselves

would secure were they to command sufficient political influence. Yet

there is no reason to think that, were the disabled the majority instead

of the minority, they could command compensatory income.  For were most

people disabled, it would surely be very difficult for the able-bodied

minority to care for and sustain so many people with disabilities. So were

the nondisabled in the minority, it is less rather than more likely that

they could guarantee to provide subsistence for the disabled.

Counterfactualizing thus reveals nothing arbitrary nor inequitable if

society does not supply such care. 

 

       Indeed, counterfactualizing indicates a significant problem with

the strategy of utilizing compensatory income to offset the social

disadvantage disability occasions. For the feasibility of doing so wanes

with increases in the population of people who are excluded from the

workplace because of their disabilities. This result suggests that

reducing exclusion is preferable to compensating for it. (Silvers, 1995.

Silvers et. al., 1998) 



2.2.2 Negative and Positive Disability Rights

      This debate fits nicely into the larger philosophical debates about

positive and negative rights.  For philosophers who propose reshaping

social practice to permit disabled people to fully participate in society,

ensuring them the same liberatory rights that others enjoy is preferable

to granting them special compensatory rights. Although such emancipation

from social restriction usually is associated with the exercise of

negative rights, it may be misleading to impose the traditional template

of positive and negative rights on our consideration of disability rights.



      Negative rights limit the ways in which the activities of rights

bearers may be obstructed; the state has a duty to ensure that the

exercise of these rights is not restricted and consequently must ensure

that rights bearers are free of the prohibited constraints. Positive

rights are entitlements to benefits the state has a duty to provide to

rights bearers. (Gewirth, 1992) Ensuring the successful exercise of

either kind of right has its costs: typically, allocation mechanisms,

such as the social security system, must be available to support

positive rights bearers, while enforcement mechanisms, such as the 

judicial system, must be available to protect negative rights bearers.



       Discrimination curtails liberty by corrupting the routes of access

to productivity and fulfillment. Claimants to protection against

discrimination traditionally call on the resources of the state to

extirpate harms that arise when the bigotry or arbitrariness of public and

proprietary entities blocks this access for certain kinds of people. Their

claims are to relatively "thick" rights which command positive action to

open the routes to accomplishment.(Silvers, 2000)



       There is neither agreement nor clarity regarding the point at which

a thick negative right transforms into a thin positive right. Responses to

discrimination sometimes appear to proffer special preferences similar to

the entitlements associated with positive rights. For instance, U.S.

disability discrimination law requires employers and program operators to

make reasonable accommodations to give disabled people meaningful access

to productive, fulfilling social participation.  Regulations that direct

the installation of toilet stalls wide enough for wheelchairs in office

buildings, or the toleration of guide dogs in restaurants and airplanes,

may appear to entitle disabled individuals to extra cost and exertion on

other people's part, rather than merely to protect their liberties. Thus,

claims to such accommodations may appear to exercise positive rather than

negative rights. (Illingworth and Parmet, 2000) From a disability

perspective, however, these regulations protect disabled people's liberty

to access toilets, restaurants and planes. For to make being stripped of

one's mobility device (because toilet stall doorways are very narrow, for

example) or one's visual alerting system (because guide dogs are banned 

from a restaurant or plane, for example) the condition of entering

a facility is as much a curtailment of one's liberty as to make cutting

off a person's legs or poking out his eyes the price of entry would be.



       This last observation illuminates one respect in which reshaping

social practice resembles implementation of a negative, rather than a

positive, right. While positive rights are entitlements assigned to some

among us, negative rights are shields for all citizens alike. The

characteristic defense of a claim to a positive right involves

differentiating those said to be deserving of it from other individuals.

In contrast, the characteristic defense of a claim to a negative right

involves assimilating those who lack a liberty to other individuals who

already enjoy it.



       When disabled people pursue recognition of their right to be in the

world, they seek the same freedoms of access as are afforded without

question to other citizens. For to alter practice so that civic and

commercial facilities can be utilized by those who substitute mechanical

devices or animal aides for legs and arms, or eyes or ears, is simply to

give disabled people the same freedoms of social participation as other

people enjoy.  Thus, when disability rights are claims for participation,

they appear to fall within the negative rights tradition. For people who

need undergo no struggle in order to be in the world, being asked to make

an effort to accommodate people with disabilities may be misperceived as

privileging this minority and so may be received with resentment. To make

clear that such accommodation only offers disabled people freedoms others

enjoy, it is advisable, as Iris Marion Young points out, to adopt public

and commercial policies aimed at fostering inclusion by accommodating the

differences of all citizens, not just those certified as falling

into the disability category. For instance, nondisabled and disable 

workers alike should challenge employers to create more individualized,

accommodating and humane workplaces.(Young, 2000) 



2.2.3. Disability Rights as Compensatory Rights  

     Nevertheless, philosophers who take justice to be mainly concerned

with the fair allocation of resources often think that access to social

opportunity is a peripheral issue when it comes to the disabled. They

assert that disabled people characteristically need more than the usual

resources. This to them is the main source of the problem of disability.

Adherents of the view that equalizing must offer more than opportunity

urge that something more than leveling the playing field must be done. 

Individuals also must be made capable of leaving the starting gate, even

if doing so involves an unevenness in how goods and services are

allocated. In general, for disabled people to flourish, extra resources

are needed to remedy the results of their limitations. 



       Disability thus poses a philosophical challenge, that of

determining whether the disabled can receive greater portions of goods

than other people do without being unfairly privileged by the allocation

scheme. Richard Arneson (Arneson, 2000), Jerome Bickenbach (Bickenbach,

1993, 2000), Dan Brock (Brock, 1995, 2000), Allen Buchanan (Buchanan,

1995, 1996), Ronald Dworkin (Dworkin, 1994), Amartya Sen (Sen, 1980, 1992,

1993) and David Wasserman (Silvers et. al., 1998) are among the well-known

contributors to the literature on this subject. Because natural

differences, including impairments, affect well-being, Sen urges taking

them into account in formulating just distributive arrangements. Sen

believes justice requires allocating more resources to individuals who

require them to enjoy basic capabilities. It is, for instance, merely

just, rather than privileging, to provide more resources to people who

need to purchase wheelchairs in order to mobilize than to people who can

mobilize by walking. Brock thinks that some of the differences caused by

impairments irremediably decrease well-being and therefore holds that

resource allocation to people with these differences may be neither

cost-effective nor otherwise beneficial. In a more nuanced view, Wasserman

points out that any adequate view requires constructing a metric of

well-being that respects the multiplicity of ways in which people can live

well. An adequate view must also convincingly determine how much

inequality in the distribution of well-being on this metric can be

tolerated before differences in allocations become unjust. 



        Arneson argues that "what we owe to one another by way of social

justice requirements goes beyond ,,, nondiscrimination."  He believes that

"the provisions of the Americans with Disabilities Act ... cannot be fully

justified by appeal even to the most plausible versions of the

nondiscrimination ideal." (Arneson, 2000: 18) For Arneson, the preeminent

ethical question in regard to disability is what we owe to people whose

competence is so low as to compromise their wellbeing regardless of the

excellence of their access to opportunity. Moral value is maximized by

making gains in the expected wellbeing of individuals disadvantaged

through no fault of their own. By increasing such individuals' material

resources, we sometimes can reconfigure the circumstances that determine

their lifetime allotment of wellbeing. So we are obligated to strive for

satisfying outcomes for all deserving people alike, regardless of their

differences of merit or talent. Such social intervention promotes a fairer

distribution of wellbeing than could be accomplished by relying on

individuals' good or ill luck in making good use of their access to

opportunity. 



      Undoubtedly, compensatory resources for goods and services conducive

to wellbeing would benefit many people with disabilities. Nevertheless,

Anderson criticizes Arneson for grounding justice for disabled people in

considerations of the incompetence and consequent neediness of this class.

Another problem is that Arneson particularizes allocation decisions by

stating the criteria deserving beneficiaries must meet: blamelessness for

their deficits and capacity to capitalize on allocated resources by

achieving enhanced welfare. Individualized judgments are required to

determine whether a particular disabled person meets these criteria and

thus is qualified to exercise disability rights.



       Answering Anderson, Arneson likely would respond that we mainly

should be concerned about improving the welfare of incompetent or unlucky

disabled individuals rather than with improving the status of the disabled

as a class. In sum, Arneson criticizes Anderson (and Silvers) for an

account on which justice invites us to treat very differently disabled

people homogeneously by giving less weight to the particulars of promoting

deserving individuals' well-being than to avoiding actions that might

stigmatize the class. On the other hand, Anderson criticizes luck

egalitarians like Arneson for an account on which justice invites us to

treat similarly disabled people differently, depending on the extent to

which they are afflicted with personal problems.



     Is it appropriate merely to level the social playing field in ways

that afford fair access to disabled people as a group? Or is it

unrealistic, and thereby unfair, to expect these individuals to take the

field at all, let alone succeed on it? Anderson and Arneson answer these

questions in different ways because they have very different ideas about

what is owed to people in virtue of being disabled. 

 

       Anderson seems to construe basic disability rights as group rights.

On this approach, disabled people have a collective right to a society in

which the existence of their type of person is acknowledged, and where the

differences that signify their group membership command respect. For

example, in a society where there is respectful acknowledgment that some

people do not hear, deaf people can expect information conveyed aurally

also to be offered in a visual mode. Similarly, where practice is

influenced by both the proposition that some people cannot see and the

principle that their access to information is as important as anyone

else's, blind people have a claim to aural or tactile versions of

information that conventionally is presented visually.



      In addition to being grouped according to their impairments, all

disabled people belong to the more comprehensive collection of individuals

whose corporeal or cognitive anomalies result in some degree of

non-species-typical performance. Together, they have a broad collective

right to a society in which practices generally are inclusive of both

species-typical and species-anomalous individuals. Within such a

society, they may have derivative individual rights to enforcement or

compensation as remedies for exclusion they suffer because they are

disabled. Of course, even if a practice is as accessible as good will and

good technology can make it, some disabled people will not engage in it

successfully. But on this view, no one is owed success in virtue of being

disabled (although there may be other grounds on which disabled and

nondisabled individuals alike are owed basic components of wellbeing). 

 

      In contrast, Arneson construes basic disability rights as individual

rights. On this approach, disabled people have individual claims to a

society in which each enjoys entitlements in virtue of having qualified

for membership in the group of the deserving disabled. Where there is

sufficient societal concern for people whose competence is compromised by

disability, deaf people and blind people can, for example, expect

resources to compensate for the loss of welfare occasioned by limited

access to information, at least to the extent that these resources will

elevate their wellbeing. Further, within such a society, disabled

beneficiaries may have a derivative collective right to practices that

make the allocation of resources effective. For example, to help make

allocations of rehabilitative services to disabled individuals effective

in securing the benefits of employment, disabled people may be assigned a

derivative collective right to accessible public transportation to get to

the workplace. However, unlike the former approach, where everyone is owed

inclusion for its own sake, on this view no disabled individual is owed

inclusion unless it is the most effective route to enhancement of her

welfare.

 

2.3. Disability Rights and Disability Policy



     The positions represented by Anderson and Arneson lay out disability

rights very differently, not only in respect to whether they are

individual or collective, but also as to the fundamental values to be

sought and achieved by exercising them. Their difference turns in part on

a disparity in their conceptions of the connection between social

participation and individual flourishing. The issue is whether the

successful exercise of participatory rights in itself secures intrinsic

value, or whether social participation is a mere instrument, one among

other possibly effective approaches, for attaining intrinsically valuable

results, namely, the increased welfare which is pursued through the

exercise of compensatory rights.



     Philosophers who take the preeminent kind of disability right to be

participatory suppose that individuals cannot flourish absent their

joining with other humans in some sorts of collective activities. Thus,

for them, participation is inherently valuable, and practices should be

shaped to facilitate interaction between different kinds of people. A

social environment that facilitates their connectedness is important for

disabled and nondisabled individuals alike. Individuals' basic needs are

to be assessed in terms of cultivating the capabilities they must have to

maintain their social connections. Distributing resources to

satisfy these individual needs secures instrumental value only. Allocation

schemes that segregate or otherwise isolate their disabled recipients are

counterproductive on this view. 

 

       On the other hand, those who construe the preeminent kind of

disability right to be compensatory suppose that participation in

community activities contributes to, but is not necessary for, every

human's wellbeing. To base disability rights on the value of social

inclusion, they say, is to deny rights to very severely disabled people

for whom access to participatory activities either is beside the point or

not possible to achieve. Yet these are the individuals who, in virtue of

the profundity of their disabilities, should be most able to have their

claims on others acknowledged. Disability rights should be meaningful for

the most disabled and responsive to their individualized situations. 

Therefore, allocating resources to satisfy these individual needs secures

intrinsic value. 



      Jonathan Wolff (Wolff, 2000) crafts a position that integrates the

fair access and fair allocation approaches.  Drawing on the work of Ronald

Dworkin to propose how a society of equals should treat the disabled,

Wolff identifies three acceptable responses: medical interventions

remedying impairments that occasion disability, resource allocations

compensating for disadvantages associated with disability, and social

practice alterations nullifying disadvantages imposed on disability. The

objective is to help each disabled individual find a place in the world. 

 

      Regardless of which strategies we emphasize, Wolff reminds us, we

must decide what amount of effort and resources to expend on doing so.

Following Dworkin, he recommends imagining people behind a veil of

ignorance, aware of the disadvantages of disability, its general

prevalence, and the costs of remedial strategies, but unaware of their own

disability status. We should consider how well, in what ways, and at what

cost people who don't know whether they are or will be disabled would

insure themselves against suffering exclusion should they become so. Tax

revenues generated on this basis would be assigned to a government agency

charged with pursuing the most effective combination of strategies -

medical repairs, compensatory allocations and services, or reform of

exclusionary social practices - both for individuals and for the general

public. 



      Wolff's solution reflects the current state of disability policy in

many nations. Medical research and resources, funded by various public or

private schemes, are applied to reduce the numbers of the disabled.

Criteria of deservingness are applied to those who cannot be cured to

determine the kind and amount of material resources and social services

each should receive. More recently, attention has turned to requiring that

environments be more accommodating to people with various kinds of

biological anomalies. In some nations these strategies all are pursued by

a  single agency charged with addressing the disability problem. In

others, different branches of government execute different aspects of

disability policy.



      Regardless of how disability policy is administered, these

components do not always co-exist compatibly. There are deep conceptual

tensions between viewing the disability problem as primarily caused by

discrimination and therefore as suscepti ble to a civil rights solution,

and viewing it as primarily a social safety net issue and therefore as

susceptible to a need- based benefits solution. How we credit what

disabled people claim society owes them is influenced by whether the claim

is framed as liberatory - that is, as a claim to opportunity all citizens

should be positioned to enjoy - or as allocatory - that is, as a claim to

assistance some citizens should be positioned to receive. 



 In the United States, disability entitlement programs that are partially

or fully need-based predated the application of the civil rights paradigm

to disability discrimination. During the quarter-century that followed the

Civil Rights Act of which Jacobus tenBroek had such high hopes, few

provisions to relieve people with disabilities of their exclusion from

social participation were integrated into comprehensive legislation aimed

at safeguarding minorities generally. (The Fair Housing Amendments Act of

1988 is a notable exception.) Instead, their protection against

discrimination was fashioned mainly by enacting or amending statutes

pertaining solely or principally to the disabled.  Important laws of this

kind included the Rehabilitation Act, the Education for All Handicapped

Children Act (now the Individuals with Disabilities Education Act), and

the Developmental Disabilities Assistance and Bill of Rights Act.  Having

waited in vain for nearly a decade to draw the disabled under the shield

of the 1964 Civil Rights Act, disability leaders eventually introduced a

nondiscrimination provision into federal statute by amending the

Rehabilitation Act. Sections 503 and 504 of the Rehabilitation Act

prohibit denying individuals participation in federally funded programs or

activities in virtue of their handicaps, but enforcement mechanisms was

lodged mainly in funding agencies' complaint reviews. Eventually, the idea

of achieving civil rights protection through a new federal statute

specifically aimed at forbidding discrimination based on disability was

adopted, and the Americans With Disabilities Act(ADA) became law in 1990. 



      During the two decades between the amended Rehabilitation Act and

the

implementation of the ADA, the statutory conceptualization of disability

discrimination seemed unproblematic. In the many investigations and rare

litigations pursued under the Rehabilitation Act, actions centered mainly

on whether complainants had been subjected to unwarranted exclusion.

Disputes most often were over whether there were unburdensome ways in

which disabled complainants could be given access to the benefits

federally funded programs bestowed on nondisabled people.  



      Complainants typically were people who suffered from diminished

prospects for employment because of some limitation of body or mind. Thus

such persons already met the criteria for services under the

Rehabilitation Act. The relief they sought typically was pertinent to the

core purpose of that legislation, for it commonly was an action or

accommodation to gain or maintain (suitability for) employment. In the

context of the Rehabilitation Act, reasonably accommodating to a person's

disability generally is thought of as responding to the person's special

needs.



       Consistent with the nature of the Rehabilitation Act as an

entitlement to benefits statute, concerns that increasing the welfare of

disabled complainants decreases other people's welfare are the most

frequent source of contentiousness provoked by attempts to exercise the

disability rights established by Sections 503 and 504. For instance, in

Southeastern Community College v. Davis (1979), the Supreme Court refused

to order that assessment of the plaintiff's application to a nursing

program be based solely on academic record, as applicants' were. On the

ground that her deafness prevented her from fully practicing the

profession "safely" (for instance, she could not be a surgical nurse

because her colleagues' surgical masks would prevent her from reading

their lips), the Court decided that the public benefits of denying her

this opportunity outweighed the personal benefits to Davis of being

admitted. 



      Litigation under the ADA commonly turns on questions of

classification rather than access. Most of the ADA cases heard by the

Supreme Court involve this issue. (Four have concerned whether specific

physical conditions meet the ADA's classificatory criterion for being

protected from disability discrimination, another addressed

inconsistencies in how different statutes define disability, and yet

another turned on whether disability is a classification that qualifies

for Fourteenth Amendment protection.) (Francis and Silvers, 2000) For

example, in Kirkingburg, the Court did not address the justice of denying

the plaintiff employment as a driver, simply because of his monocular

vision and despite his demonstrating adequate depth perception and a

flawless driving record. Instead, the fact that the plaintiff had overcome

the usual limitation of monocular vision and had passed the tests for

depth perception meant, to the Court, that he could not be classified as

disabled and so had no standing under the ADA.(Kirkingburg, 1999) Notice

that, by pursuing individualized inquiries into whether plaintiffs'

impairments are sufficiently limiting so that eligibility criteria are

met, the Court has applied procedures characteristically applied in

disputes about social welfare rights to adjudicate civil rights

complaints.



 In sum, U.S. disability policy encompasses incongruous understandings of

disabled people's rights. Even where civil rights and benefit entitlement

statutes require the same compliance - for instance, the provision of a

sign language interpreter for a person who cannot hear - the two

kinds of laws supply quite disparate warrants for the same requirement.

The ADA underwrites disabled people's equal right to the same degree of

social participation enjoyed by other people. On the other hand, the

Rehabilitation Act establishes disabled people's special right to the

fulfillment of needs not experienced by other people. Disputes under the

Rehabilitation Act focus on whether the actions required to provide

disabled individuals with access are too burdensome on nondisabled people.

Disputes under the ADA have, so far, assumed that such actions are

required and have focused, instead, on who is included in the group for

whom they must be executed. 



 Disability policy in other nations exhibits similar complexity. For

instance, neither Australia's 1992 Disability Discrimination Act(Jones and

Marks, 2000), nor Section 15 of the Canadian Charter of Rights and

Freedoms (enacted as the Canada Act in 1982) (Bickenbach, 2000), nor the

UK's 1995 Disability Discrimination Act (Silvers, 1995; Corker, 2000)

makes clear whether captioning, ramping, and print enlarging should be

thought of in general terms - as integral elements of an increasingly

inclusive social climate in which the existence of deaf, vision impaired,

and mobility limited people, and their right to equal access to the world,

are acknowledged. Or whether, on the other hand, these accommodations

should be understood in particular terms - as contingent responses to the

petitions of singular individuals with extraordinary needs.



2. 4. Are Disability Rights Redundant? 

      Moral theories that center on justice typically foreground the goals

of securing equality for all alike through the exercise of rights that all

should recognize. There are, however, challenging reasons for thinking

that assigning justice the preeminent moral role in ameliorating the

disability problem disregards the realities of disability and especially

of the dependency associated with it. Looked at in this light, grounding

disability policy in other, more appropriate values should make appeals to

disability rights subsidiary or even redundant. 



     Writing about her relation with her disabled daughter, Eva Feder

Kittay considers how we can best care for people made vulnerable by

significant impairments. We should recognize that their lives have a value

unrelated to productivity and profit:  their contribution is the bonding

that relationships of dependency create. This is an important contribution

because the coherence of our sense of ourselves as persons relies on our

relations with others. Supporting the bonding between seriously disabled

individuals and their families helps realize the human capacity for moral

connectedness. (Kittay, 1996, 2000) 



 Relating to disabled people holds further beneficial lessons. The more we

stress the importance of independence, Kittay observes, the more we are

inclined to feel threatened by disabled people who remind us of our own

potential for dependency. We should utilize this reminder to recognize

that each of us has periods in which we need to be cared for and thus are

susceptible to exploitation and abuse. Then we will not be motivated by

the fantasy that our lives are at all moments under our own control. 



 Susan Wendell also thinks feminist ethics that value care over justice,

and interdependence over autonomy, afford disabled people a role

preferable to the one they must assume under the traditional ethical

standards of justice, equality, and autonomy. Within the embrace of an

ethics of care, Wendell urges, disabled people would be free to

acknowledge their limitations, dependencies, and other real differences.

Unfortunately, cultural taboos rooted in the currently predominant value

of self- determination through self-sufficiency now discourage disabled

people from being honest in communicating their experiences. (Wendell,

1996)  Far less optimistic about reforming cultural values than Kittay is,

Wendell doubts that we will cease to occlude disability. She thinks fears

of loosing bodily control and suffering are too deeply embedded in our

culture to be dislodged.



      On the other hand, Alasdair MacIntyre casts the disabled as the

quintessential moral insiders because rational consideration of their

experience stimulates both personal and social virtue. (MacIntyre, 1999)

Acknowledgement of disability plays an important role in answering the

question 'Why be moral?", MacIntyre argues. The pervasiveness of human

disability is a compelling reason for virtuous social conduct. Disability

makes dependence an ineluctable element of human existence, and the

disabled should not be relegated to the social fringe because their state

is a condition we all have the potential to share.



      For MacIntyre, the occlusion of disability of which Wendell

complains is indicative of an irrationally driven, scarcely virtuous

culture. Personal and social virtues of acknowledged dependence facilitate

our flourishing as dependent animals, he thinks. Further, laws that

protect the disabled will prove hollow in societies where the virtues of

acknowledged dependence are not cultivated.(MacIntyre, 2000) In societies

where this is not so, even generally benevolent people "will tend to see

the cause of the disabled as something competing with other causes ...

They will not take the possibility of ... a career as a provider of care

for the disabled as having any great claim upon them and they will not

understand the importance of ... enhancing the status ... enjoyed by those

who give their lives to such caregiving. Moreover, they will not recognize

what important indicators these are of the moral wellbeing ... of their

society."(MacIntyre, 2000: 85) This suggests that there may be an inverse

ratio between a society's virtue and the need for its disabled citizens to

invoke disability rights. 



3. Conclusion 

      Prior to calling attention to the urgency of recognizing disabled

people's right to be in the world, Jacobus tenBroek studied and wrote

about the reasons Americans of African descent should not be

collectively enslaved, Americans of Japanese descent should not be

collectively imprisoned, and women should not be collectively prohibited

by statute from rewarding kinds of employment. (Tussman and tenBroek,

1949) It is no accident, then, to find him gripped by the similarities

between such constraints upon the liberties of other minorities and

disabled people's deprivation of social access. Nor is his supposition

that all such wrongs are susceptible to similar remedies surprising.

Whether his assumption in this regard is accurate remains an unresolved

issue for both public policy and practical ethics.



      TenBroek's proposal emerged in a climate in which a tradition of

casting welfare, rather than liberatory, values as the basis of disability

rights prevailed. An even older tradition, in which virtue rather than

duty properly motivates interactions with disabled people, also retained

influence. In such tangled circumstances, which persist today, shapers of

disability policy are inclined to elide competing theories of moral value

and therefore to conflate the kinds of ethical appeals they made.



     One challenge for practical ethics, then, is to clarify the

implications not only of various construals of disability rights, but also

of theories on which the pursuit of certain goods, or the cultivation of

certain virtues, eclipses proposals to address the social exclusion of

disabled people through recognition of their rights. Equally important is

the challenge of elevating both private and public efforts to address the

disability problem by introducing into these exceedingly emotional and

politicized debates the higher standards of lucidity, coherence, and

sensitivity to nuances, associated with serious endeavors of practical

ethics. 



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