Freeman

ARTICLE

Terms of Impairment

The ADA Blurs the Line Between Lawful Activity and Unlawful Discrimination

OCTOBER 01, 1998 by GEORGE C. LEEF

The Americans with Disabilities Act (ADA) was passed by Congress and signed into law by President George Bush in 1990 amid much congratulatory hoopla. “Let the shameful wall of exclusion finally come tumbling down,” the President declared. “Every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.” Like all the other grand, noble exercises in federal utopia-building, the ADA is proving to be a prolific source of examples of the law of unintended consequences. One would almost suspect that a group of crazed free-market economists had dreamed this law up so as to never run out of illustrations of the ways coercive legislation leads to harmful results.

Stories about the litigation the ADA has spawned are legion: a suit by a 350-pound Tennessee woman against a movie theater for not having seats wide enough to accommodate her; a judge who argued that he should not be removed from the bench after being caught shoplifting because he was “disabled” by depression over his daughter’s failure to get into law school; a suit by a deaf lifeguard over a YMCA’s insistence that all lifeguards be able to hear distress cries. The list goes on and on.

The remarkable vagueness of the law makes it easy for prowling lawyers to concoct federal cases out of rejection, disappointment, or inconvenience. A person has a “disability” if he has a “physical or mental impairment that substantially limits one or more of the major life activities.” But what counts as an “impairment”? What is a “major life activity”? What is a “substantial limit”? Laws used to be very precise. You knew whether you had stolen another person’s car or not. But with the ADA, the demarcation between lawful activity and unlawful “discrimination” is pure fog.

Fashionable Diagnosis

Among the “impairments” that have become prominent under the ADA is attention-deficit disorder (ADD). This recently “discovered” learning disability can entitle the “sufferer” to special legal status and obligates others to provide special compensatory treatment, known in legal parlance as “accommodation.” In the years to come, one of the most uttered phrases in America will be, “You must accommodate me—or else.”

Children who have trouble staying focused, following instructions, or playing calmly are said to have ADD. There are no objective symptoms, and everyone who has ever been around children very much knows that at times virtually every child has trouble paying attention to what adults want him to pay attention to. Fortunately, trained experts—child psychologists and counselors with the appropriate university degrees and state certificates—are able to diagnose ADD. In fact, parents often ask them to.

Why would a parent want to have his child diagnosed as having a learning disability? The answer is that in the perverse world of the ADA, the special privileges to which you are entitled if you fall into the “protected class” of the disabled give you significant advantages over normal (or, to use the politically correct term, “differently abled”) people.

One accommodation to which those with this learning disability are entitled is the right to take crucial exams, such as the Scholastic Assessment Test (SAT), the Law School Admission Test (LSAT), and the Medical College Admission Test (MCAT) under special conditions—in a distraction-free room and with extended time. Taking away the normal, pressure-filled test conditions and replacing them with the congenial conditions of ADA accommodation can make a large difference in performance. Parents know that, and, wanting to maximize the chances of success for their children, some shop around for a specialist who will give the desired diagnosis. The number of exams given under “special circumstances” has risen exponentially ever since the ADA became law.

The Educational Testing Service (ETS) administers the SAT, LSAT, MCAT, and other exams. When students show their ADD papers, they are routinely given the mandatory “accommodation.” When their scores are reported to colleges and universities, ETS marks them as “nonstandard administration,” which could mean that the test was given in braille, in enlarged print, or, as with those “disabled” with ADD, additional time. More than that ETS does not dare say, for fear that it would be sued if it provided any further information about the exact testing conditions.

Once they have the test results, colleges and universities are careful not to treat the standard ones as any different from the nonstandard ones. To do so would, again, be to invite litigation. The expense and adverse publicity that would come from a suit alleging one of the most heinous of all contemporary offenses—discrimination against the disabled—is simply not worth the benefit of being able to assess more fully the capabilities of the various applicants.

The result is that students whose parents were clever and wealthy enough to use the ADA to their advantage by securing a “disability” diagnosis wind up with a substantial advantage over others. The student who was allowed to take, for example, the MCAT without time pressure is more likely to gain admittance into medical school than an otherwise comparable student who took the MCAT normally.

A Legal Leg Up

To the extent that attention-deficit disorder diagnoses are just a scam (and some medical experts argue that the very notion of ADD is quackery), the law is simply giving the unscrupulous a means of getting ahead of everyone else. To the extent that ADD is real and the law is assisting individuals who have a hard time concentrating to get into colleges and professional schools, it is attacking one of the most important functions of market competition, namely, steering people into the kinds of work for which they are best suited. Not even the most vociferous advocate for “the disabled” would be willing to be treated or operated on by a doctor who has difficulty in staying focused.

By short-circuiting the market’s tendency to direct people into appropriate work, the ADA increases the likelihood that consumers will suffer at the hands of less-than-competent practitioners. Ordinarily, the slightest chance that something might harm a consumer is enough to send statists into frantic activity. Several years ago, for instance, the federal government banned the use of Alar in apple orchards when it was disclosed that some lab rats developed tumors after being force-fed megadoses of the chemical. The resulting publicity had mothers wondering if it was even safe to dump apple juice down the drain. Sober scientists pointed out that neither the apple juice nor Alar posed even the slightest threat to humans, but their voices were drowned out by the cry, “We must not take chances!”

There is far more likelihood that someone will be harmed by the egalitarians’ attack on standards, of which the ADA is an integral part. However, you search in vain for any expression of concern from them that compelling schools to admit lesser-qualified individuals involves taking chances. Evidently, risks brought on by their own feel-good meddling with individual decision-making and the natural order of the world don’t count.

Despite the high-blown rhetoric, the ADA is a terrible solution to a virtually non-existent problem. Most truly handicapped people who wanted to work, attend college, or do anything else were able to do so prior to the enactment of the ADA. They had to adapt to the world, however, pursuing goals that were realistic given their mental and physical limitations. They had to seek out institutions and employers that wanted them, rather than forcing themselves on those that didn’t. They naturally steered themselves toward those situations where their handicaps were not handicaps at all, just as people lacking an aptitude for mathematics steer themselves into fields where mathematical ability is not important.

The statists with their mania for group rights, however, can’t tolerate that “the handicapped” sometimes have to take “no” for an answer. Rather than trying to help the handicapped to improve their abilities and find the places where they fit in naturally, they take the political path of legislated coercion. Much as we may feel for the disabled individual struggling to make ends meet (and bear in mind that many disabled people succeed very well on their own), it is wrong to use coercion to deprive other people of their freedom to make decisions—their right to say “no.”

ASSOCIATED ISSUE

October 1998

ABOUT

GEORGE C. LEEF

George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

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