14th Amendment should be used to ensure equal protection for those with disabilities

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Linda Klein

ABA President Linda Klein. Photograph courtesy of the Office of the President.

Any American, at any stage of life, could join the nearly one-in-five of our citizens who has a disability. If people with disabilities were a formally recognized minority group, they would constitute the largest minority population in the United States.

But they are not, and that presents some difficult legal issues. When it comes to employment opportunities, educational equality and access to fair benefits, people with disabilities can lack essential constitutional protections.

Did you know that it is legal to pay you less than minimum wage if you have a disability? And you can be denied a job opportunity if an employer has to make an accommodation that is deemed “unreasonable.”

People with disabilities are twice as likely to live in poverty and far more likely to be unemployed.

People are not disabled by physical or cognitive impairments. Rather, architectural barriers, societal attitudes and discriminatory policies contribute to the status of those with disabilities.

How our government and we, as a society, address the issues that confront people with disabilities and their families—from transportation, to employment, to education, to full and equal access to services—defines us as a people.

We have made progress in the past 50 years in the area of disability rights. New assistive technologies have made it possible for people with disabilities to use computers, phones, elevators and mass transportation on their own.

And Congress has passed several laws that have protected the rights of those with disabilities, including the Architectural Barriers Act in 1968, the Urban Mass Transportation Act of 1970, the Rehabilitation Act in 1973, the Individuals with Disabilities Education Act in 1975, the Air Carrier Access Act of 1986 and the Fair Housing Amendments Act in 1988.

Thanks to these laws, individuals with disabilities have greater access to buildings, public transportation, housing and education. All these laws led up to the crowning legislative achievement: The Americans with Disabilities Act was signed into law in 1990. The ADA prohibits discrimination in employment, public services, public accommodations and telecommunications.

In spite of this progress, constitutional limits protecting people with disabilities remain.

The 14th Amendment, and especially its Equal Protection Clause, has been a powerful tool in the battle for civil rights in our courts ever since the 1954 Brown v Board of Education ruling that determined schools segregated by race were unconstitutional. While the 14th Amendment has been used to uphold the rights of women and minorities, it has not proven as effective in the disability rights movement, due mainly to a U.S. Supreme Court ruling more than 30 years ago.

In 1985, the Supreme Court ruled in City of Cleburne v. Cleburne Living Center, Inc. that a permit for group home for mentally disabled people should be granted. But despite the ruling in favor of the home, the court did not find that the mentally disabled were in a class that was historically subjected to discrimination. Therefore, they were not entitled to a stricter level of review under the Equal Protection Clause of the 14th Amendment.

This decision has made it much easier for states to pass laws that discriminate against people with disabilities. States have a lower bar to clear when proving that they have a reasonable and rational excuse for not making accommodations for people with disabilities. Many times, showing the added costs and expenses has proved sufficient for the courts.

The Supreme Court has ruled in favor of individuals with disabilities based on statutes. In March of this year, the court ruled 8-0 in Endrew F. v. Douglas County School that a child with disabilities is entitled to more than just a minimal education. But the decision was based on the Individuals with Disabilities Education Act and not the 14th Amendment.

Several disability rights groups recently sued the New York City subway system over its lack of accessibility. Only 117 of the system’s 472 stations, less than 25 percent, are accessible to people who cannot use stairs. But again, no mention of the 14th Amendment in the complaint. Instead, plaintiffs are claiming violation of the New York City Human Rights Law, which recognizes disability as a protected class and offers broader protections.

While the courts have not yet recognized that rights of people with disabilities are fully protected under the 14th Amendment, the American Bar Association supports legislation that prohibits discrimination on the basis of disabilities akin to existing prohibitions on discrimination based on race, sex, national origin and religion. If stronger legislation, such as the New York City Human Rights Law, is not passed more broadly in America, then judicial action is needed to ensure those with disabilities can function as equal, productive members of society.

It’s time for courts to recognize the rights of people with disabilities. Constitutional protections are required if they are to have true equality. We celebrated the 14th Amendment during Law Day on May 1. We would do well to pursue constitutional protections for those with disabilities so truly all can benefit from America’s commitment to freedom and equal opportunity for all.

Linda Klein is the senior managing shareholder at Baker Donelson Bearman Caldwell & Berkowitz and president of the American Bar Association. Follow President Klein on Twitter @LindaKleinLaw or email [email protected].


Updated on June 30 to correct a typo in the total number of accessible New York City subway stations.

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