Protecting the Disabled Will Carry the Civil Rights Torch Even Further

President-elect Barack Obama has a long list of challenges. Two wars, a tanking economy, a failing health care system, and global climate change are all vexing issues. But no one runs for president of the United States because it is an easy job.

Change is no doubt needed on many fronts, and I do not claim to have the expertise to address most of them. I teach, research and write within a particular subset of civil rights law: the laws and policies that impact the lives of people with disabilities. The lives of people with disabilities have improved greatly in this country and across the world, but there is still a lot of work to be done to allow everyone to reach their potential as people and citizens. To that end, I would like to humbly propose several steps that the next administration should take to extend its message of hope to people with disabilities. Obama has already indicated that this community is on his mind. On his election night speech, he called his victory "the answer spoken by young and old, rich and poor, Democrat and Republican, black, white, Hispanic, Asian, Native American, gay, straight, disabled and not disabled."

I want to stress that these are not pie in the sky suggestions. They are all steps that could reasonably be taken and I firmly believe would have positive effects. This is an exciting moment in disability policy. Obama inherits a legal system where the Americans with Disabilities Act, our pre-eminent national statement on the rights of people disabilities, has just been amended in ways that will make it stronger and extend its protections to people who have been unfairly excluded. And, with the largest influx of returning veterans with disabilities in history, the disability perspective is in the public consciousness more than ever. Obama should seizing on this moment in time by taking the following steps.

First, as broken as our health care system is generally, it is worse for people with disabilities. A significant amount of federal spending on disability issues goes to health care programs (primarily Medicare and Medicaid). These programs were created for an elderly, non-working population, and have not been substantially revised since then. To qualify for public health insurance, working-age adults must prove that they are completely unable to work (and in many cases, must not have worked for two years). If they do go back to work, they can lose their health insurance and it can be difficult or impossible to get it back. People with disabilities are especially vulnerable to the loss of public health insurance because they are routinely denied private insurance on the basis of pre-existing conditions. In today's world, given advances in medicine, technology and the passage of civil rights laws like the ADA, more people with disabilities can and want to work in some capacity. Our laws and policies should not be discouraging them from doing so.

The Obama administration should support laws and programs that provide health insurance (and other social welfare benefits, like job training programs) to people with disabilities who have or want to have some connection to the labor market. Recent laws like the Ticket to Work Incentives Act are positive steps, but they need to be strengthened and extended. The good news is that more robust health care and job training programs for veterans with disabilities - which are not as linked to a complete inability to work - show that these steps can be successful.

Second, even though our antidiscrimination laws are strong, we can improve them. Too often, the law as it exists on paper does not match the reality on the ground. More than 15 years after the ADA was passed, many of its provisions are still widely ignored. This is especially the case in the accessibility of buildings and programs that are open to the public. The Department of Justice is the institutional actor with the most wherewithal, expertise and statutory mandate to challenge systemic noncompliance. Yet the Justice Department has not aggressively moved to bring big cases that would send the message that noncompliance is inexcusable. It needs to recommit to doing so, much in the same way it took the lead in enforcing Title II of the Civil Rights Act of 1964.

But public enforcement authorities cannot bring every case. In our civil rights system, individuals are the primary vindicators of their own rights. The current regime has real weaknesses in that regard. Individuals who challenge accessibility violations under the ADA cannot sue for damages: they can only seek injunctive relief. To lawyers representing these individuals, their only hope of getting compensated lies in getting attorney fees. But the Supreme Court's decision in Buckhannon v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001), complicated things. This case allows defendants to change a policy on the courthouse steps, mooting out a plaintiff's claim and creating a situation where their attorneys cannot receive attorney fees (even though the litigation created the positive change). The Obama administration should support legislative overturning of Buckhannon. The ADA could also be amended to allow for even modest damage claims for these types of cases. In California, our state law provides this, and as a consequence, we live in one of the most accessible states in the country.

Third, we need to recognize that the case of disability rights extends beyond our shores. There is an international disability rights movement that our government is choosing to be left out of. The United States, under the Bush administration, made the decision not to sign or ratify the new United Nations Convention on the Rights of Persons with Disabilities. An Obama administration decision to sign this treaty would restore our place as an international leader and beacon of hope on disability issues. The subsequent ratification process would serve as a useful exercise to evaluate our own laws and policies against new disability standards that have wide global consensus.

We no doubt face great challenges as a nation in the coming years. How we respond to them will help establish what kind of country we continue to be. I hope that we choose to carry on our tradition of being a civil rights leader that vigorously protects and ensures the dignity of all people.