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Bagenstos Talk Highlights History of Disability Rights

By John Masson
March 25, 2013

Human Rights Week is over, but a coffee talk on the evolution of disability rights by Prof. Sam Bagenstos will linger for a handful of Michigan Law students.

Last week's informal coffee talk, presented in a seminar room in South Hall, focused on the Americans with Disabilities Act and also featured background on the development of the rights of disabled people in the United States and abroad.

"It's a relatively young movement in America, although you can see precursors going back a long, long way," said Prof. Bagenstos, a nationally recognized expert in the field and a former Principal Deputy Assistant Attorney General for Civil Rights. "But it doesn't really get going until the late Sixties and early Seventies, inspired by the Civil Rights Movement and the return of large numbers of soldiers wounded in Vietnam."

The first federal statute incorporating a rights-based approach to better access for disabled people, Prof. Bagenstos said, was the Rehabilitation Act of 1973.

"It really said, 'Don't discriminate on the basis of disability,' but then everybody had to figure out what that meant," he said.

The Act took the law into uncharted territory, Prof. Bagenstos added, as bureaucrats tried to write rules that would be enforceable, understandable, and acceptable to a broad American society that had traditionally made critical decisions about people based on their disabilities.

Neither the Nixon nor the Ford administrations issued the regulations, and Joe Califano, President Jimmy Carter's Secretary of Health, Education, and Welfare, openly questioned the usefulness of the Act when balanced against how much it would cost to enact it.

"That creates the first moment of national salience for disabled people," Prof. Bagenstos said. "They started to agitate politically. ...and they occupied some buildings in San Francisco," basically forcing Califano to issue the regulations that would become the basis for disability rights litigation in America.

Eventually the movement became powerful enough in Washington to provoke a backlash from the deregulation-minded Reagan Administration. So advocates began framing their arguments in terms of productivity and moving disabled people off welfare and into the workforce, which allowed disability rights to gain significant traction with Republicans.

President George H.W. Bush, in fact, became a convert for the rights of the disabled, and ultimately their champion. The end result was the Americans with Disabilities Act of 1990, which enjoyed bipartisan support in Washington but was not warmly received by a country worried about how much it would cost. Court decisions over the next decade and a half clipped the Act's wings, Prof. Bagenstos said, until President George W. Bush gathered enough support to broaden its impact once again.

American support for disability rights on the global stage hasn't always been as impressive, Prof. Bagenstos said. The United Nations Convention on the Rights of Persons With Disabilities received technical support from the United States, but Washington initially refused to be a party to it on the grounds that the ADA already represents the best disability law in the world. President Barack Obama finally signed the convention on behalf of the United States on the 19th anniversary of the ADA.

That's when bipartisan support for the action broke down, Prof. Bagenstos said. "This got caught up in partisan politics," he said. "But I don't think we demonstrate our leadership by pretending that we're perfect."

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