On Tuesday morning, the Supreme Court will explore how far civil rights laws go to protect disabled individuals – American’s “invisible minority” – from discrimination. That will be the first of two hearings tomorrow. The second hearing, involving Medicare rules for reimbursing hospitals for drug costs, was reviewed as part of a discussion here yesterday. That analysis is available at this link: Who makes the laws? (lyldenlawnews.com)
The “live” audio (without the video) of Tuesday’s hearings can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supreme court and at C-Span Now App.
The disability rights case, Cummings v. Premier Rehab Keller, is scheduled for 70 minutes starting at 10 a.m.
Background: The story of civil rights in America is actually a collection of stories about cultural, social and political campaigns waged by various minorities. Most Americans know at least something about the campaigns for equality of the races and equality of the sexes. Many are far less acquainted with efforts to promote gay rights or the rights of transgender people, although they may have heard of political, religious and morality disputes surrounding each of those.
But another campaign – that of the so-called “invisible minority” – has almost escaped notice, or has faded frequently from public view. That is the effort to win recognition and then equality for people who are disabled. The effort has continued for well over a half-century, but still struggles to hold the nation’s attention.
Before an activist movement for equality began forming in the 1960s, being disabled often meant being put away in an “asylum” and forgotten. The Anti-Defamation League once summed up the situation this way: “The ‘purification’ and segregation of persons with disability were considered merciful actions but ultimately served to keep people with disabilities invisible and hidden from a fearful and biased society.”
The League also noted that the nation’s most famous disabled President, Franklin Delano Roosevelt, who was partially paralyzed for much of his adult life from the effects of polio, became a strong advocate for the disabled yet kept his own condition away from public view because of the prevalent “notion that a disability was an abnormal, shameful condition, and should be medically cured or fixed.”
Indeed, the controversy in 1997 surrounding creation of a memorial to FDR next to the Potomac River in Washington, D.C., demonstrated the stigma. As originally planned, the sculpture would not show him in a wheelchair. The National Park Service has noted that the design team “considered that if FDR did not show his disability to the public in his life, the memorial shouldn’t either.”
But, through the intervention of disability rights groups, a revised design was approved by Congress, and sculptor Robert Graham’s bronze image of FDR in a wheelchair was dedicated in 2001, along with a plaque with words from Eleanor Roosevelt praising the “strength and courage” that her husband’s disability had given him.
By then, the disability rights groups had had a number of significant successes in Congress.
The first major triumph of the movement came with passage by Congress in 1973 of the Rehabilitation Act. It bans discrimination against the disabled in any program that receives federal funds. That law typified the main focus at the time of that movement: ending discrimination against the disabled in jobs and public services. The movement had that focus after joining forces with civil rights groups seeking to end discrimination based on race and gender. The movement later would pursue its own goals of increasing public benefits – especially, removal of physical barriers to mobility — and medical care.
The Supreme Court once remarked on why Congress had passed the 1973 law: “Discrimination against the handicapped was perceived by Congress to be most often the product, not of individual animus, but rather of thoughtlessness and indifference – of benign neglect.” (The use of the word “handicapped” in legal opinions has since been replaced by references to the “disabled.”)
But what had gone before may well have been more than “benign neglect.” Along the way toward its successes, the disability rights movement not only had to overcome presidential vetoes of some of the legislative victories, but occasionally even decisions by the Supreme Court narrowing the protections in some of those laws.
For example, Congress passed a sweeping civil rights act in 1964, banning discrimination based on race, religion, national origin and sex, but it explicitly refused pleas to include protections for the disabled.
Among the more controversial of the Court’s decisions interpreting disability rights laws came in 1984, involving a small religious college in Pennsylvania, Grove City College. A divided Court ruled that a 1972 law (after which the Rehabilitation Act had been patterned) only barred discrimination in a specific program at that college that had received federal subsidies, not in the entire institution. Because that ruling cut back on anti-bias protections in several federal laws, Congress fixed that setback in 1988.
By far the greatest disappointment for the “invisible minority” was the Supreme Court’s 1985 decision in the case of City of Cleburne v. Cleburne Living Center. In that case, involving a Texas city’s denial of a permit to set up in a residential neighborhood a group home for those with mental disabilities, the Court ruled that the Constitution only provides the very minimum protection for discrimination against such individuals. Any government regulation in that field, the Court said, will be upheld if it meets the minimum legal standard of being “rational” – a test that very few government actions would fail.
Groups like the American Association of People with Disabilities have complained often that the time has come to provide heightened constitutional protection for the disabled. That idea does not appear to have much promise of achievement, however.
After the 1980s, further advances for this movement came with the 1990 passage of the broadest law yet to benefit the disabled, the Americans with Disabilities Act. Many of the protections in that Act were strengthened when the Affordable Care Act (“Obamacare”) was enacted in 2011.
As the current Supreme Court term opened this October, advocates for the “invisible minority” were deeply fretful of how the Court’s new conservative majority might narrow laws providing significant protections. The Court had agreed to hear two cases, and both were scheduled to be heard this week.
One of those cases involved an appeal by the CVS drugstore chain, asking the Justices to rule that the only kind of discrimination outlawed by the 1973 law and by “Obamacare” (the ACA) was discrimination that was specifically intended against disabled individuals taking part in programs aided with federal funds. If the Court were to rule that way, it would take away protection against bias that was the unintended but actual effect of a program – in the CVS case, a drug benefit.
The CVS appeal drew a wide range of opposing legal briefs from disability rights organizations. The movement, though, averted that threat last month when CVS agreed to settle that case out of court. The Court itself had nothing to do with that settlement, and simply took the case off of its docket routinely when notified of the settlement.
The second new case is the one scheduled to be heard tomorrow morning. It involves a Texas woman, Jane Cummings. She has been deaf since birth and has severe impairment of her vision. She has said she cannot communicate in writing, but is able to see the movements of sign language. She went to a physical therapy firm in Fort Worth, Premier Rehab Keller LLC, seeking treatment.
She asked the firm to provide a sign-language interpreter, saying that would be her only way to communicate during therapy. The firm denied her request, twice, so she went elsewhere for therapy.
Because Premier Rehab receives federal funds, it is covered by the anti-discrimination provisions of the federal Rehabilitation Act and by Obamacare (the ACA). Contending that the discrimination caused her emotional distress, she sued under those laws, seeking money damages for that condition. She sought only money to compensate for the emotional harm she claimed, not an extra amount of “punitive” damages (a form of add-on damages award not tied to specific harms but serving as a deterrent.)
A federal trial judge and a federal appeals court rejected her claim for money damages, concluding that neither one of the federal laws provided for such a remedy. Because that decision conflicts directly with rulings by other appeals courts, Cummings filed an appeal in the Supreme Court. Her interpretation of the law has the support of the Biden Administration.
The question before the Court: If a disabled person can prove that a provider of services that are partly funded by the federal government violates the Rehabilitation Act or the ACA, causing emotional distress, can the remedy include an order to pay compensatory damages?
Significance: It is generally understood, in the field of discrimination law, that being treated more harshly because of one’s personal condition almost always causes emotional or psychological harm. That is not disputed in this case. The only controversy is over whether the winner of a claim of discrimination based on one’s disability can be compensated with money. Obviously, a court order to pay damages not only works to make the injured individual “whole,” in a legal sense, but cautions others against violations.
As Congress passed one after the other of civil rights laws, it built those upon each other, so court interpretations of any one of them are likely to apply to most if not all of the other laws. Disability rights advocates have had major influence with Congress, ever since their first significant victory there in 1973. They have much at stake in making sure that a traditional monetary remedy will remain available.
On Wednesday, the Supreme Court holds its historic hearing, in a Mississippi abortion case, on a plea by the state to overrule Roe v. Wade and a later precedent reaffirming a key part of the Roe precedent. Last week, three articles in this space discussed a variety of issues related to that case. Those articles are available below, the entries for November 22, 23 and 24.