Backlash, Courts, and Disability Rights

Abstract

This symposium celebrates fifty years since the passage of the Civil Rights Act of 1964. This Essay looks at the relationship between the Civil Rights Act of 1964, the ADA, and the disability rights movement’s social and political journey in pursuit of the ADA, with the goal of making a preliminary contribution to the debate about the role and utility of backlash. Disability rights occupy an unexamined and perhaps unique corner in this discussion. Like the civil rights movement, the disability rights movement sought to upend the existing social order, bringing a previously excluded group into the fold. But, whereas the Civil Rights Act of 1964 was the result of a politically salient and even painful national dialogue, by comparison, the ADA was not. And, while Supreme Court decisions in areas like affirmative action, abortion, and same sex marriage have been important movement moments, both reflecting and creating backlash, ADA Supreme Court decisions have not been central features in the movement’s quest for equality.

My argument is that the disability rights movement has something to offer the debate over the role of backlash. A court skeptic view, in expressing support for social change occurring through the legislature, seems to assume that going through the more representative branches creates the level of contestation necessary to produce meaningful change. A transformative statute will only be passed when society is ready for it. Though undoubtedly correct for the Civil Rights Act of 1964, the same cannot necessarily be said about the ADA. And, if conflict and backlash are not entirely harmful but create positive movement and normative effects, their limited expression here supports one theory of the frustration of certain movement goals.

Keywords: disability law, civil rights, law and social movements

JEL Classification: K10, K30