Recently, I was the recipient of a truly irrational Court Order / Memorandum by a well meaning Federal Judge who clearly was not someone who like myself has read over 15,000 ADA cases and law review articles. And I understand she probably did not have the time to learn the ADA this way. But millions of disabled Americans do learn the ADA as the only way to try to assert our rights.
And this conundrum between the knowledge GAP most disabled Americans have vs. the officials and others who determine our fate often leads to some Amazingly irrational reasoning.
One of these gaps involve The Dumb Things NeuroTypical Officials Say About How The Relationship Between Americans With Disabilities Act "Reasonable Accommodations" And "Incompetency" Affects The Autistic People.
The recent statement was: 'reasonable accommodations and incompetence are two different things. If you can get an accommodation, you are not incompetent.' Huh ? Come again ? (What if you "can get" the mythological "accommodation," but they don't give it to you ? What then ? Does the Court just take relief against the person with incompetencies without REMOVING them ? And how does that satisfy due process ?).
I'll explain what's wrong with this NeuroTypical way of thinking.
Most NeuroTypicals are so caught up in themselves and their kind, they really don't think a whole lot about disabled Americans or what it is like to be a disabled American -- much less an Autistic American. Autistic Americans are particularly affected by the above line of mis-conceived thinking. That's why I will go to some length at deconstructing the fallacy.
First, it must be admitted that "History of disabled Americans and disability rights" is (1.) not taught in our public schools, (2.) not taught in our colleges and universities for the most part, (3.) not taught in law schools, and (4.) not required to pass a bar exam to qualify for a license to advise all types of officials what their duties are. This situation keeps our elected and appointed officials in the dark about a significant segment of the American population.
Disabled Americans see such ignorance, inattention, and lack of awareness every day, as the "diversity" pages of official websites such as The Florida Bar and California State Bar, their bar examiners, and the university law schools that graduate future lawyers depict racial, ethnic, and gender symbols, but never the face of a disabled American. Historically, the "diversity" equation has not included Americans with disabilities and in particular lacks neurodiversity. But to see this, the person (particularly if NeuroTypical) needs to be trained to "spot the issue."
This historical entrenchment of pervasive and institutionalized segregation of disabled Americans continues in thousands of state and local laws, and even some federal rules and some of the older statutes, that continue to embody the discriminatory social medical model of disability which causes the NeuroTypical mind to conceive of disability as a medical defect in the individual. Such disability policies are rooted in core NeuroTypical assumptions about the nature of disabilities and the obligations of both individuals and society. See http://www.dredf.org/international/waddington.html.
The social medical model of disability sees disability as a defect in an individual that renders the person unable to work or function in society in a conventional "normal" way. See http://www.dredf.org/international/waddington.html. By "normal," NeuroTypicals mean by conformity to their cultural, ethnic "social norm." But, as the Autistic people say, 'normal is only a setting on a washer or dryer,' as science has found a vast diversity in the human species. Rather than adapting their NeuroTypically designed institutions to accommodate disabilities, people with disabilities are directed toward a separate and unequal parallel track that provides income and services apart from the institutions that serve the NeuroTypical majority. See http://www.dredf.org/international/waddington.html. Kinda sorta like "colored" and "white" drinking fountains.
The NeuroTypical social medical model arose like the Phoenix from the ashes of the Aryan Eugenics movement of "the perfect human," and has proven dominent because it poses no threat to mainstream NeuroTypical institutions -- it permits the NeuroTypical people to establish public services and "social" institutions without regard for people with disabilities, since it adopts the premis that medical limitations will inevitably render people with disabilities unable to participate. The exclusion of people with disabilities is thus accepted as an inevitable natural consequence of "medical realities." See http://www.dredf.org/international/waddington.html. The separate and unequal parallel Apartheid track is an essential component of the NeuroTypical social medical model because it justifies the failure to include people with disabilities in NeuroTypical mainstream institutions -- by allowing the NeuroTypical people to exclude people with disabilities "with a clear conscience." Id.
The NeuroTypical social medical model places heavy emphasis on sorting and labeling. It inevitably relies on mechanisms to determine which track any given individual should be directed to. It inevitably comes to rely on the notion disabled Americans are an identifiable category of people that can be treated apart from the mainstream of NeuroTypical society. See http://www.dredf.org/international/waddington.html. Like Rosa Parks was required to "sit in the back of the bus."
The civil rights model legislatively re-directs the focus where it belongs on the societal response to disability. The civil rights model rejects the premis that NeuroTypical social exclusion is an inevitable consequence of disability. See http://www.dredf.org/international/waddington.html. Under this view, Americans with disabilities have historically been excluded from NeuroTypical social institutions because those institutions have failed to adapt and design themselves to the needs of the disabled, even as they routinely adapt to the needs of NeuroTypical others. This failure to accommodate flows from NeuroTypicals conscious and unconscious aversions to Americans with disabilities. Id. Seen in this light, the problem is one of discrimination, rather than the need of the person or their caregiver to address that person's inherent medical limitations "imposed by the disability." Id. Under the civil rights model, the goal is to reform NeuroTypical mainstream institutions to include people with disabilities, id., rather than to maintain the parallel track of disenfranchising, disempowering Jim Crow laws.
The two models stem from diametrically opposed assumptions and tend toward conflicting objectives. The NeuroTypical social medical model views disability as a medically determined status. By contrast, the civil rights model legislatively determines the limitations relating to medical conditions are the result of an interaction between the condition itself and the social context and environmental design that gives significance to the condition. See http://www.dredf.org/international/waddington.html. Accordingly, under the civil rights legislation, there is no ojectively fixed status of disability, id. -- such as seen in the historical "incapacity" and "incompetency" Jim Crow labling laws.
A number of consequences flow from this disparity in assumptions. See http://www.dredf.org/international/waddington.html.The NeuroTypical social medical model is built on the idea of separation, while the civil rights legislation focuses on inclusion and removes Americans with disabilities to the separate and unequal parallel Apartheid track system. The civil rights legislation is directed to abolishing separate and unequal institutions for Americans with disabilities and integrating such persons into the NeuroTypical mainstream. Id.
Additionally, the NeuroTypical social medical model that places emphasis on tracking and sorting thrusts "the inabilities" of Americans with disabilities into flashing neon lights to signal NeuroTypical others. Such Apartheid systems require Americans with disabilities to "validate their status" by proving their various functional inabilities in the form of a "confession" of their "inabilities," See http://www.dredf.org/international/waddington.html, as an extremely damaging hazing entry to the separate and unequal parallel Apartheid track. This process is intended to "mark" Americans with disabilities to reinforce the NeuroTypical stereotypes about the "incompetence" of people with disabilities. Id.
In contrast, the civil rights legislation emphasizes the capabilities of Americans with disabilities, requiring obstacles to disabilities to be restructured. See http://www.dredf.org/international/waddington.html.
The NeuroTypical social medical model and the civil rights legislation cannot co-exist. The two work at cross-purposes. See http://www.dredf.org/international/waddington.html.
Support for the NeuroTypical social medical model undercuts and conflicts with the civil rights legislation. The NeuroTypical people see the civil rights legislation as "a threat" to NeuroTypical institutions that "provide benefits" to Americans with disabilities, id., as well as treat them as no different than Big-Pharma / nursing home commodities (like hogs or cattle) or sheltered workshop / residential group home slave property that brings a buck and serves as a "job creation machine" for the NeuroTypical people through a separate and unequal Apartheid track.
The concept of "reasonable accommodation" is fundamental to remedy the separate and unequal Americans with disabilities Apartheid caste system, so remarkably in its segregation like Nelson Mandela's Soweto, that has existed in the United States for far too long.
Most NeuroTypicals lack the proper understanding that "reasonable accommodation" is the civil rights integration mechanism aimed at removing disability-related obstacles that are the Neurologically Different's "Jim Crow" laws. The United States, and most state and local laws still contain a parallel track for the disabled, who by definition are "neurologially different," based on strategies of exclusion rather than strategies of inclusion.
A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, community living, or public life -- that is, to be in the World, to the same extent as the non-disabled. See http://www.harvardlawreview.org/media/pdf/vol126_reasonable_accomodations_law.pdf. As Autistic people say, Autism is "a different way of being," "not lesser," and we have a right to be in the World, Autistically.
The archaic NeuroTypical social medical model "incompentency" criteria and guardianship laws are a disability-related obstacle aimed at exclusion via a sorting and tracking mechanism that contravenes the ADA's Title II implementing regulation, 28 C.F.R. Sec. 35.130(b)(8). Their goal is to (1.) make sure the American with disability confesses they are a defective human being, (2.) reinforces the disabled American's second-class citizenship and treatment as "lesser," (3.) "marks" the disabled American for the separate and unequal Apartheid segregation track, where the person's freedom of choice, self-determination, independence, economic-self-sufficiency, respect, dignity, and safety are removed.
Autistic Americans are particularly affected, because while we have our own ethnic culture, identity (Spectrumites), beliefs, language (Autistic), and have formed an community sometimes called "Aspie Tribe," the NeuroTypical "incapacity" and "incompetency" separate and unequal Apartheid segregation track does not take our indigenous Tribe into account. Nor does it evaluate Autistic people by our inventor / creative / object-based / systematizing capabilities - the ones that have made a number of us Savants and Nobel Prize winners, inventors of many things that have benefitted humankind, and propelled the computer industry, even as many of us cannot feed ourselves and have many neurological issues. Instead, it evaluates us on our use of a different language than the NeuroTypical majority, who label our Autistic language as 'inability to speak,' 'inability to write,' 'incomprehensible,' 'deviant,' and 'abnormal.'
This is no different than the use of Voting "literacy tests" to screen out black Americans at the poll, or labeling their status under the NeuroTypical social medical model as the psychiatric "illness" of drapetomania, that is 'the inability to turn white.'
Similarly, homosexuals were a "mental illness" condition in the Diagnostic and Statistical Manual of Mental Disorders based on their sexual orientation, that is not much different than the "extreme male brain" of Autistic women that gives rise to our systematizing abilities.
Autistic savants are defined as having a paradox of savant abilities in the same person who has severe neurological brain disabilities. The civil rights "reasonable accommodation" mandate is HOW the incompetencies at certain tasks are REMOVED to level the playing field -- without destroying the talents.
Every disability or impairment involves one or more task incompetencies. To impose the NeuroTypical social medical model separate and unequal Apartheid "incapacity" or "incompetency" sorting and tracking suffers from vagueness and overbreadth, is over- and under-inclusive, and mis-conceives the civil rights legislation "reasonable accommodations" mandate, its purpose, and underlying inclusion concept. For example, In Re: McDonough, Petitioner, 457 Mass. 512 (Aug, 11, 2010), clearly demonstrates the "reasonable accommodation" mandate is HOW (the permissible mechanism by which) such an "incapacity" or "incompetency" are removed. See id. at http://masscases.com/cases/sjc/457/457mass512.html. Not by a NeuroTypical social medical model separate and unequal Apartheid "incapacity" or "incompetency" sorting and tracking label with a prior restraint of speech via guardian proxy, but by providing a "reasonable accommodation." In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002), Justice Breyer reasoned that the concept of "accommodation" contains an implicit effectiveness requirement.
So when Autistic people like me encounter one of these GAPS involving The Dumb Things NeuroTypical Officials Say About How The Relationship Between Americans With Disabilities Act "Reasonable Accommodations" And "Incompetency" Affects The Autistic People, it is easy to see from the Autistic perspective how this is an indignity and an affront. Oppression and subjugation are wrong.
It is an indignity and an affront because it signifies we Autistic people should be treated lesser (and sometimes dangerously by others) solely because the NeuroTypical social medical model of separate and unequal Apartheid remains ENTRENCHED. Even in the minds and the thinking of otherwise well-meaning NeuroTypical people.
It is like being told to drink from the "coloreds only" drinking fountain. Like being told to sit in the back of the bus. Like being sent to separate and unequal schools. Like becoming a commodity or being treated as other people's property.
It is NOT Okay.
What comes to mind is Dr. Suess' story "The Star-Bellied Sneeches." There were the sneeches with stars and those without. The Star-bellied sneeches wanted to maintain their superiority. Then the "reasonable accommodation" machine came to town, and put stars on those without so Sneechville became color blind. This, like the civil rights "reasonable accommodation" legislation upset the Star-bellied sneeches, because no one could tell the two different groups apart. So they paid to have their stars removed, to maintain the separate and unequal Apartheid system. But before long, due to Neurological Differences and the "reasonable accommodation" machine that was constantly in action, together with the outlawing of the NeuroTypical social medical model, ultimately an integrated color blind society was achieved.
For those NeuroTyicals who still say the Incredibly Dumb Things, have you taken a look yet at the DSM-V ? "With 'diagnostic criteria' that include[s]
disliking school, fidgeting, disobedience (for children), dissatisfaction with one’s sexual performance, unhappiness, shyness, getting angry, and playing the horses (for adults), Dr. Chodoff ... wrote that this diagnosis would “encourage the quest for a drug to cure the disorder of being human.” See http://luc.edu/media/lucedu/law/students/publications/llj/pdfs/hass.pdf (quoting Dr. Paul Chodoff, Letter to the Editor: Proposed Diagnosis, PSYCHIATRIC NEWS (Jan.
21, 2005), http://psychnews.psychiatryonline.org/newsarticle.aspx?articleid=108472).
As the DSM-V (and VI, VII, and VIII) expands the population of Americans with disabilities, the archaic NeuroTypical social medical model "incompentency" criteria and guardianship laws disability-related obstacle aimed at exclusion via a sorting and tracking mechanism will get EVERYONE. (That is, unless you're not human).
It is time to start re-THINKING this IRRATIONAL NeuroTypical Apartheid system of segregation. It is SEPARATE and UNEQUAL.
And it is UN-American.