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 ccasionally a
law is passed that is more than a mere rule for governing public
life. It registers a changing attitude and crystallizes it into
a decisive change in the culture. The official history of such a
law may be written in court decisions, but its effects are felt
all the way down to the minutiae and imponderabilia of everyday
life. Consider the Americans with Disabilities Act.
At commencement a few weeks ago my university gave a teaching award
to a professor for her outstanding work in teaching statistics.
In a letter recommending her for the award, one of her students
quipped that Professor Sullivan was so good that she succeeded in
turning “even us math cripples” into competent statisticians. I
quoted the student when I drafted the citation for Professor Sullivan.
Then the fun began.
A self-appointed officer of the Sensitivity Police — actually
a university editor — called my office to take exception to
the phrase “math cripples” on the grounds that the word “cripples”
is offensive. I brushed her off but she persisted, explaining that
a member of her staff has multiple sclerosis and was also “outraged”
by the term “cripples.” Getting nowhere with me, she then called
another administrator who is herself crippled as a result of a stroke
years ago and pleaded with her.
The outcome might have been different elsewhere, but the antediluvian
instinct is still strong at my particular university. The citation
was read at commencement, “math cripples” intact.
I thought about this again when the Supreme Court decided the other
day that golfer Casey Martin was entitled, via the Americans With
Disabilities Act, to cruise in a golf cart between holes in PGA
tournaments. And I thought as well about the student in one of my
classes, who, at the beginning of the semester, presented me with
a letter insisting that she be given extra time on exams because
of her “learning disability.” She turned out to be a fine student:
a close and thoughtful reader who often offered illuminating answers
to questions in class and on her exams. I couldn’t discern any evidence
of a disability. I had to wonder: Was she really better off traversing
the college curriculum with her I-need-extra-time passport in hand?
It is, of course, not for me to decide, any more than it is the
PGA’s right to decide that walking between holes is an essential
part of professional tournament golf. Since Congress passed the
ADA in 1990, matters like these are decided by the experts -- by
physicians, psychologists, and federal judges.
I know this all too well. Several years ago, the university where
I serve was the target of a class-action suit after we changed some
of the loopy procedures that had crept into the way we were handling
learning-disability claims. We eliminated the “foreign-language-learning-disability”
route to getting out of the language requirement. Ditto for “dyscalculia,”
the dysfunction that allegedly prevents learning math. (Math cripples,
please meet Professor Sullivan.) And we decided that we would accept
diagnoses of learning disabilities only from people who possessed
some reasonable qualifications. That excluded, for example, the
“doctor” whose degree turned out to be in metallurgy.
Dragged into U.S. District Court over issues that ought to have
been entirely at the discretion of any college or university, Boston
University prevailed on the key issues. But the court made sure
we lost enough to recognize who is really in charge. In her decision
in August 1997, Judge Patti Saris held, for example, that our provost
hadn’t sufficiently consulted the faculty before deciding that the
foreign language requirement is an essential part of our liberal
arts program. She admitted into testimony a raft of pseudo-scientific
claims. And a handful of the plaintiffs walked away with nominal
awards.
The legal rebukes were trivial, but the ADA has a built-in kicker.
To encourage vigilant enforcement of the law, Congress decided that
if the plaintiffs “prevail,” they win attorney’s fees — and
the judge decides how much or how little a plaintiff needs to win
in order to “prevail.” This provision for attorney’s fees is what
has earned the ADA its legal nickname of the “Lawyer’s Full Employment
Act.” In fact, the ADA has spawned a well-lubricated industry of
people expert in diagnosing various fugitive and ad hoc disabilities,
attorneys who have a pay day whether they win or just bully the
other side into submission, and judges who can dabble in the management
decisions of virtually every enterprise in the land, from professional
golf to teaching an undergraduate liberal arts curriculum.
But exaggerating the importance of the thousand natural shocks that
flesh is heir to is not just the work of pompous judges and greedy
specialists. The little signs of ADA-think are everywhere. Purse-lipped
editors stab at offending words; finical souls seek reassurance
that no one is being hard-hearted toward the nouveau disabled;
talented young men and women learned to see their physical and intellectual
weaknesses as medical conditions; and much, much, more. When the
Supreme Court tells the PGA that golf is to be played by a new set
of rules, it is only putting the finishing touch on a transformation
that has already pervaded the culture.
If we, in a certain sense, have crippled ourselves, what is to be
done? As matters stand, the ADA is unchallengeable. It has created
its own immense interest group of lawyers, doctors, teachers, and
bureaucrats. It has gained a powerful psychological hold over parents
who now see their children’s frailties as diagnosed conditions.
It has persuaded millions of healthy people that they are subtly
disabled and entitled to various special considerations. No, the
ADA is here to stay for a good long time.
If we are to recover from this immense folly, it will take time
and dedication to a kind of moral re-education. Americans need to
re-learn how to be self-reliant. We need to rediscover a certain
shame in asking for special favors. And we need to see that to coast
on our disabilities is to ask for a special favor. This is
rightly the work of our families, our churches, and our schools.
But the groundswell that will change the culture and eventually
the law will have to begin with little things. Like saying no to
the Sensitivity Police.
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