Rights Gone Wrong: How Law Corrupts the Struggle for Equality - Softcover

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Entitlement and Advantage
 
 
Now you want me to tell you my opinion on autism...? A fraud, a racket. For a long while we were hearing that every minority child had asthma ... Why was there an asthma epidemic amongst minority children? Because I’ll tell you why: the children got extra welfare if they were disabled, and they got extra help in school. It was a money racket ... Now the illness du jour is autism. You know what autism is? I’ll tell you what autism is. In 99 percent of the cases, it’s a brat who hasn’t been told to cut the act out. That’s what autism is ... Everybody has an illness ... Stop with the sensitivity training. You’re turning your son into a girl and you’re turning your nation into a nation of losers.
On July 16, 2008, the radio talk show host Michael Savage managed to offend parents of disabled children, racial minorities, and women in less than a minute and a half—an accomplishment that his rivals Rush Limbaugh and Glenn Beck can only aspire to. The group Autism United demonstrated in front of the New York radio station that carries Savage’s program. One of his sponsors, the insurance company Aflac, promptly gave Savage some unwelcome sensitivity training: it pulled its advertising from his program, explaining that the company found “his recent comments about autistic children to be both inappropriate and insensitive.” Criticism was almost unanimous among doctors, child psychologists, disability rights advocates, parents, and pundits alike. Several local stations dropped Savage’s program in response to public outrage.
Savage is a provocateur—deliberately insulting and extreme, with a loose regard for factual accuracy. According to the clinical psychologist Catherine Lord, autism is “just like epilepsy or ... diabetes or a heart condition. [Savage’s comments are] like blaming the child with a heart condition for not being able to exercise.”1 Savage eventually backpedaled, saying his remarks were “hyperbole,” designed to draw attention to the problem of fraudulent diagnosis. He agreed to devote another show to the subject so that parents of autistic children and others could air dissenting views.
Savage, like Limbaugh and Beck, is conservative and contentious, but he is also idiosyncratic—often unexpectedly thoughtful, even cerebral. While Limbaugh and Beck are activists for conservative politicians and causes, Savage is distinguished by a kind of crotchety ennui. As contemptuous of other conservatives as he is of liberals (he called Glenn Beck a “hemorrhoid with eyes”), he treats partisan politics with an aloof disdain: “You’ll have to go to one of the other talk-show hosts to get ‘Obama’s a Ma-a-arxist’ and ‘McCain is a wa-a-ar hero.’”2 As a result, where other conservative talk show hosts are annoyingly predictable, Savage’s off-the-cuff ramblings and intemperate tirades are often surprising and intriguing, and they often contain at least a grain of truth. For instance, Dr. Lord admitted that mild autism is vaguely defined and can be a catchall diagnosis for children with behavioral problems who fit no other category. A year and a half after Savage’s remarks, the psychiatrists in charge of writing the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders announced that they were considering folding several types of mild autism—such as Asperger’s syndrome and pervasive developmental disorder—into a single broad category—autism spectrum disorder—reflecting a new understanding that autism is not a single disorder but rather a range of conditions, from severe mental disabilities to mild emotional abnormalities that can come with extraordinary mental gifts.
There’s a professional consensus that severe autism is a discrete neurobiological condition, but mild cases can be hard to distinguish from less well-defined conditions, such as attention deficit hyperactivity disorder (ADHD) and other vaguely defined “learning disabilities.” Here, diagnosis is difficult and contestable, and expert opinions differ. “We’re fairly good about making the diagnosis of kids who are classically autistic, but as you move away from that specific disorder, it gets harder ... [F]or kids who are of average, close to average or above average intelligence, it is difficult to sort out what is eccentricity versus what is a real social deficit,” said Dr. Lord.3
Federal law doesn’t reflect a continuum that includes mild autism and learning disabilities along with eccentricity and poor concentration. For legal purposes, a disability is a discrete condition: either you have it, and therefore have a right to an array of special concessions and extra help, or you don’t. The law doesn’t define learning disabilities with precision, but it does provide a partial definition: “a severe discrepancy between achievement and intellectual ability.”4 In practice, this means that learning disabilities are diagnosed, in large part, by identifying a gap between a child’s performance in academic settings and the performance one would expect of a child of his or her age and IQ.
Civil rights laws entitle all disabled people to special accommodations and services: a blind person might require an exam to be administered orally or written in Braille; a paraplegic might require voice-recognition software or transcription. These accommodations let the disabled reach their potential. Children with learning disabilities are also legally entitled to accommodations and services that other children are not, such as special tutoring and extra time on exams. In theory, just as a blind person needs Braille, a Seeing Eye dog, or a cane to overcome his blindness, a person with ADHD may need extra time to get organized and overcome his inability to concentrate.
But there are some important differences between severe disabilities like blindness and milder learning and behavioral disabilities. First, conspicuous disabilities often trigger reflexive animus or prejudice. Many employers wrongly assume disabled people can’t work, and businesses discriminate against them because of squeamishness and irrational aversion. A business that refuses to accommodate a disabled person might secretly wish to exclude him. Milder disabilities don’t trigger such reflexive prejudice because, for the most part, they are not conspicuous: typically an employer learns of a learning or an emotional disability only when an employee seeks an accommodation for it. Second, most of the accommodations that people with severe disabilities need wouldn’t help a nondisabled person at all. A sighted person wouldn’t benefit from having an exam written in Braille; an able-bodied person wouldn’t get much of an edge from using voice-recognition software or a professional transcriber. By contrast, people with learning and emotional disabilities often enjoy extra time on competitive exams, costly one-on-one tutoring, and exemptions from discipline for disruptive behavior—things that would benefit anyone. Finally, unlike blindness or a physical disability, many learning disabilities are hard to define objectively; as Dr. Lord admits, they are on a continuum with ordinary “eccentricity.” Put these together and you have a recipe for gaming the system: no one would suggest that an eccentric person with a wandering mind has a right to extra time on a timed exam, but someone with ADHD does—and the two can be hard to distinguish. This doesn’t suggest that civil rights for people with mild cognitive disabilities are a “racket,” but it does suggest that they have the potential to encourage opportunism and can lead to unwarranted advantages.
Suppose two children achieve low scores on a competitive timed exam: one has a diagnosed learning disability, and the other doesn’t. Suppose both of the children’s scores would improve dramatically if they had extra time to complete the exam. Is it fair to give one student extra time and not the other? Maybe. In theory, the extra time isn’t an advantage for the person with a learning disability; it’s just the way he copes with his disability. But if the disability is on a continuum with garden-variety poor concentration, then in fairness anyone with poor concentration should be entitled to extra time in proportion to the severity of his concentration deficit. This would, of course, defeat the purpose of a timed exam, which is to test not only skills and knowledge but also the ability to perform quickly.
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The Harvard medical student Sophie Currier became a heroine to advocates of breast-feeding in 2007 when she demanded and eventually won the right to a breast-pumping break during a medical licensing exam. No hothouse flower, Currier first took the exam—widely considered to be one of the most challenging of all professional qualification exams—when eight months pregnant and came just short of a passing score. Currier chose to nurse her newborn baby as most experts in the medical profession she was poised to join recommend. But she still needed to pass the exam in order to start her residency at Massachusetts General in the fall. So she asked the National Board of Medical Examiners to give her a break—specifically, an extra hour each day to express and store her breast milk. The board refused, informing Currier that it would accommodate only disabilities as defined by the Americans with Disabilities Act.
Currier wasn’t the first woman to get a less-than-nurturing reaction to her nursing. Until recently, nursing an infant in public was considered indecent exposure and could result in citation or even arrest. Businesses and employers not only refused to accommodate nursing mothers but often deliberat...