Returning Veterans and Disability Law

Federal laws and policies as they relate to the employment of people with disabilities are at war with themselves. Antidiscrimination law, primarily through the Americans with Disabilities Act, is premised on the empowering idea that people with disabilities can and should work once discriminatory societal barriers are removed. But antidiscrimination law does not work alone. There is a separate sphere of social welfare policies that provides more affirmative forms of assistance to people with disabilities. These older programs contain significant work disincentives and are often conditioned on detachment from the labor force. These divergent views of disability and employment have contributed to the low success rate in moving and keeping people with disabilities in the workforce. The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework

The Untold Story of the Rest of the Americans with Disabilities Act

The Americans with Disabilities Act ( ADA )\u27 can be described as the All-Star team of civil rights legislation. The framers of the ADA sought to create sweeping change in nearly every facet of the lives of people with disabilities. To achieve these ambitious goals, the framers assembled the best and brightest parts of other civil rights legislation: pieces of Title VII of the Civil Rights Act of 1964, Section 04 of the Rehabilitation Act of 1973, Title II of the Civil Rights Act of 1964, and the Fair Housing Act. The end result was a comprehensive statute with three major parts: Title I, dealing with employment, Title II, dealing with public services, and Title III, dealing with public accommodations. The All-Star analogy has obvious limits. All-Star teams are typically chosen by fans or coaches, who are able to select whomever they want. In contrast, the framers of the ADA had to make important sacrifices to achieve passage of the statute. And while All- Star teams usually only play together for a short period of time, the ADA has hung around a bit longer, celebrating its fifteenth birthday. At this milestone, like spectators of All-Star games, nearly everyone has an opinion about the ADA\u27s success. Most commentators, while acknowledging that the ADA has created some positive change, believe that its overall effects have been disappointing. A standard set of explanations has evolved in the literature for what is wrong with the ADA. These include the increasingly narrow way the courts (in particular, the Supreme Court) have interpreted the ADA, specifically, its definition of disability cases; the limits of antidiscrimination law in changing the broader problems faced by people with disabilities; and the limitations of the accommodation mandate. These competing explanations generate different proposals for ADA reform, including amending the ADA to overturn unpopular court decisions and a more aggressive return to social welfare policies. This Article challenges the assumption, taken nearly as a given until now, that these explanations apply equally to all Titles of the ADA

Returning Veterans and Disability Law

Federal laws and policies as they relate to the employment of people with disabilities are at war with themselves. Antidiscrimination law, primarily through the Americans with Disabilities Act, is premised on the empowering idea that people with disabilities can and should work once discriminatory societal barriers are removed. But antidiscrimination law does not work alone. There is a separate sphere of social welfare policies that provides more affirmative forms of assistance to people with disabilities. These older programs contain significant work disincentives and are often conditioned on detachment from the labor force. These divergent views of disability and employment have contributed to the low success rate in moving and keeping people with disabilities in the workforce. The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework

Disability Constitutional Law

As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short- or long-term constitutional strategy. Rather, these lawyers take the Supreme Court\u27s decision in City of Cleburne v. Cleburne Living Center, Inc., holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere