Disability Rights

Peter Blanck, Peter Blanck

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351943963
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Sociologia

There is great diversity of definitions, causes and consequences of discrimination against persons with disabilities, yet there are fundamental themes uniting countries in their pursuit of human rights policies to improve the social and economic status of those with disabilities. In this volume are twenty-five important articles examining historical, contemporary and comparative issues crucial to the advancement of disability rights. The volume foreshadows the future of disability rights as a medium for ensuring that those living with disabilities participate as equal citizens of the world.

Part I

Rise of Disability Rights

[1]

BEFORE DISABILITY CIVIL RIGHTS: CIVIL WAR PENSIONS AND THE POLITICS OF DISABILITY IN AMERICA

Peter David Blanch^*

Michael Millender^**

I. INTRODUCTION

The tenth anniversary of the Americans with Disabilities Act (“ADA”) has been a bittersweet event for the scholars and activists who have used the occasion to take stock of the statute’s impact on the lives of disabled Americans. On the one hand, they have celebrated the fact that the ADA is quietly transforming the nation’s built environment and prompting employers to make workplace accommodations that have enabled disabled persons to join, or remain in, the workforce.¹ On the other hand, they have noted the discouraging judicial reception of the ADA, which has resulted in defendant victories in over ninety percent of employment discrimination cases and a string of Supreme Court decisions that have rejected expansive readings of the legislation.²

Many scholars have invoked the history of twentieth-century American disability policy to explain why courts have so stubbornly resisted the conceptions of civil rights and anti-discrimination that are at the core of the ADA.³ They have attached significance to the fact that in the 1970s and 1980s, the commitment to the civil rights of disabled people embodied in the ADA rapidly replaced a “medical” conception of disability that had structured government disability policy for most of the twentieth century.⁴ Although they draw different conclusions about the impact of this conceptual transformation on the judicial reception of the ADA,⁵ commentators have been united in a particular reading of disabled Americans’ experiences under the medical model.

In the narrative that has gained unquestioned legitimacy in recent ADA scholarship, the medical model focused on the individual, whose disability was conceived as an infirmity that precluded full participation in the economy and society. It posited that government should direct resources to rehabilitation programs that would enable the disabled to “overcome” their impairments. As a result, the medical model cast disabled people in a subordinate role in their encounters with doctors, rehabilitation professionals, psychologists, and social workers who aimed to “help them” adjust to a society structured around the convenience and interests of the nondisabled. Because the medical model never questioned the physical and social environment in which disabled people were forced to function, it countenanced their segregation and economic marginalization. And because it aimed to address the “needs” of the disabled rather than recognize their civil rights, the medical model frequently led to governmental policies that viewed assistance for the disabled as a species of welfare.⁶

By contrast, the civil rights model that began to influence government policy in the 1970s conceptualized the disabled as a minority group entitled to the same hard-won legal protections that emerged from the struggles of African-Americans and women for equality. Proposing that disability is a social and cultural construct, the civil rights model focuses on the laws and practices that subordinate disabled persons and insists that government must secure the equality of disabled persons by eliminating the legal, physical, economic, and social barriers that preclude their full involvement in society.⁷

There is, of course, much truth to this historical reading of disabled Americans’ experiences under the governmental policies that put the medical model into practice. Yet, like any interpretation of the past that posits an epochal paradigm shift, this narrative obscures as much as it reveals. By focusing on the stigmatization of the disabled embedded within the medical model, the standard narrative ignores the ways in which disabled people have coped with—and contested—those limiting attitudes during the first three quarters of the twentieth century in America. Earlier scholars’ emphasis on the hierarchical relationships between disabled persons and bureaucrats, doctors, and rehabilitation counselors similarly has downplayed the ways in which the disabled shaped those relationships and, through their own advocacy, transformed conceptions of disability in the period well before the notion of civil rights for the disabled was even conceivable.

This Article examines the history of Civil War pensions for disabled veterans—a crucial yet neglected chapter in the history of disability in America—and uses it to complicate scholarly assumptions about disabled individuals’ encounters with the state in the century before the rise of the disability rights movement that culminated in passage of the ADA. After the Civil War, the federal government created a pension program for disabled Union veterans that became, to that time, the world’s largest and most generously funded social insurance scheme. In an era when the national government played a minimal role in the affairs of most Americans, Civil War pensions consumed as much as 42% of the federal budget in many years.⁸ At its peak in the early years of the twentieth century, the federal pension system disbursed approximately $140 million per annum to one million Union Army veterans and their dependents, providing them with an average annual payment of $139 in a period when the average worker earned only $375.⁹ In the 1880s and 1890s, southern states also granted pensions to wounded and disabled Confederate veterans, who were ineligible for federal pensions. Although southern pension plans were small compared to the massive federal system, they represented a significant fiscal sacrifice by poorly-funded governments and similarly placed disabled veterans in a novel and complex relationship with their state governments.¹⁰

A lively scholarly literature acknowledges the significance of the Civil War pension plans in the evolution of the American state, but historians only recently have begun to examine the experiences of disabled veterans as they filed claims under the state and federal schemes.¹¹ As Part II of this Article shows, the emerging historical record suggests that scholars and advocates who wish to gauge the past and present ability of disabled persons to alter the institutional practices that impact upon their lives must look beyond conventional forms of political expression and protest. Although disabled Civil War veterans enjoyed the political support of the Republican Party and submitted their pension applications to a sympathetic bureaucracy in Washington, we have illustrated in prior empirical studies that these advantages did not accrue to individual veterans with unusual medical conditions or controversial claims.¹² In fact, our findings suggest that the federal pension system’s decision-makers privileged some disabled veterans over others. By the end of the nineteenth century, Union veterans with particular disabilities, such as nervous disorders and infectious diseases, were rejected at higher rates and received smaller pensions even when the Pension Bureau initially approved their claims.¹³

We also find that despite these attitudinal barriers, even poor and socially marginalized veterans seized upon the opportunities granted by pension legislation to pursue their claims. Approval ratings for stigmatized and hard-to-verify disabilities were strikingly high, albeit not as high as those secured by veterans whose disabilities were viewed with favor by the Pension Bureau. These approval rates reflect the persistent bureaucratic maneuvering of ordinary veterans and their advocates as they sought to persuade the Bureau’s decision-makers that they had satisfied the federal government’s definition of disability.¹⁴

Part III compares Union veterans’ encounters with the federal pension system to the experiences of former Confederate soldiers who received state pensions in the post-Reconstruction South. When Democrats attempting to solidify white control over state politics granted pensions to Confederate veterans in the 1880s and 1890s, they reacted against the expansive definitions of disability embodied by federal legislation as well as against the Bureau’s adversarial, lawyer-dominated procedures.¹⁵ As we will show by an examination of Virginia’s evolving pension laws, legislators limited pension eligibility to soldiers of modest means and good character who had been wounded in the war. Moreover, they discouraged challenges to administrative rulings by forbidding applicants from hiring attorneys to assist them in the claims process. Perhaps because Confederate pensions were a species of charitable relief which buttressed the cult of the “Lost Cause” that engaged many white Southerners in the late nineteenth century, the plans were politically popular even though they absorbed funds that could have been spent on schools, roads, and public health.¹⁶ Disabled southern veterans, however, paid a price for political and cultural legitimacy. By supporting pension schemes that reduced them to mute icons of the South’s glorious past, Confederate veterans and their families forfeited the opportunity to become a powerful political force in a period when the Democratic Party’s hegemony was uncertain.

Finally, Part IV of this Article explores the continuities between Civil War veterans’ experiences with the federal pension plan and subsequent encounters between disabled individuals and the government. It proposes that many legal commentators have drawn selectively upon the history of disability in the twentieth century to create a distorted depiction of the experiences of disabled Americans under the “medical model” that dominated federal policy for most of the twentieth century. These accounts of the medical model have overemphasized the impact of rehabilitation programs on the disabled and underemphasized disabled persons’ experiences with benefits programs such as the Social Security Disability Insurance (“SSDI”) program. As a result, legal scholars have underplayed the ways in which disabled persons have played a crucial (albeit limited) role in shaping the governmental policies that affect their lives by using tactics remarkably similar to those employed by Civil War veterans in their pursuit of benefits: that is, the use of lawyers and grass roots advocacy efforts to persuade physicians and governmental agencies to endorse more expansive conceptions of disability.

A word is in order about our aims in writing this Article. Inquiry into the history of disabled soldiers in the late nineteenth century is in its infancy. This Article draws upon the work of other scholars and reports the preliminary findings of our empirical research on the experiences of veterans who applied for pensions in the North and South. Our aim at this stage is to raise questions rather than provide answers. We hope that the Article will provoke scholars to look anew at the construction of disability as well as the legal and political agency of disabled persons in the past and in our own time.

II. UNION SOLDIERS AND THE FEDERAL PENSION SYSTEM

The notion that war veterans deserve to be compensated by the nation emerged haltingly in early America. Congress granted pensions to disabled veterans after the American Revolution, but it did not assist impoverished veterans of that war until 1818.¹⁷ In 1832, the federal government finally offered pensions to the approximately 33,000 living survivors of the revolutionary war.¹⁸ These schemes were complemented by the more individualized generosity of Congress and state legislatures, which granted pensions to destitute veterans and their dependents who submitted petitions.

Thirty years later, the Civil War placed unprecedented pressures on the federal government to raise large armies, especially after the northern public’s initial burst of enthusiasm for the war disappeared along with hopes for a quick and decisive Union victory. Congress responded by creating a pension scheme that assured enlisted men that, if wounded, they could claim benefits as a matter of right.¹⁹ By the early twentieth century, Union veterans’ continuous pressures on the government to embrace broader conceptions of disability had transformed the Civil War pension system from a program that benefited only veterans whose war-related wounds and illnesses rendered them incapable of performing manual labor into the largest and most generous social insurance scheme in the world.

A. From Disability-Based Pensions to General Service Pensions, 1862-1907

In 1861, shortly after the outbreak of the Civil War, Congress passed legislation that granted pensions to disabled veterans as well as to the widows and minor children of dead soldiers. A year later, Congress created the “General Law System.”²⁰ The 1862 legislation expanded upon the first statute by establishing a medical screening ...