July 19, 2023

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Signed a third of a century ago by George H.W. Bush, the landmark 1990 Americans with Disabilities Act remains an illuminating example of the curious ways in which politics and policy tend to operate in modern America.

The central aspect of the ADA is that it’s a civil rights law, modeled on the 1964 Civil Rights Act. It assumes that the main problems of the disabled are not, you know, their disabilities, but that they are discriminated against by society.

On the other hand, while you can pass a law allowing blacks to eat at Southern lunch counters and, after a brief tumult, they can eat at Southern lunch counters, you can’t just pass a law saying the crippled can walk. The world doesn’t work that way.

“The point of the ADA is not to provide the greatest good for the greatest number, but to assert the rights of a particular legally privileged class.”

So, in practice, the government spends a lot of time and money deciding upon accommodations for those who legally qualify as disabled. For example, if you are blind, you may take your seeing-eye dog virtually anywhere.

Seems reasonable.

But note that under the ADA we now offer this accommodation to the blind not because it’s a wise, generous, and beneficial thing to do, which it is, but because it’s now their right.

But of course we can’t offer accommodations to everyone, just to those who legally qualify as official victims of discrimination. Not surprisingly, however, the number of official victims rises inexorably, as does the victim mindset.

In the 1990s, perhaps the most visible and expensive set of changes mandated by the ADA was the construction of a vast number of wheelchair ramps and other accessibility accommodations such as curb cuts.

When the dust finally settled, the ramps had proved useful to far more Americans than just the relatively limited number in wheelchairs. The new ramps around old staircases were a boon to mothers pushing baby carriages, workmen delivering heavy loads on dollies, and frequent fliers with the new wheeled luggage.

Indeed, the construction of wheelchair ramps in the 1990s might help explain the oft-asked question of why suitcases with wheels didn’t become common until that decade. Polyurethane wheels revitalized skateboarding in the mid-1970s and roller-skating in the late 1970s, but wheeled carry-ons took longer to catch on, perhaps because if you still have to manhandle your suitcase up stairs, is the added weight and expense of wheels worthwhile?

It’s a little like the old question of why the Aztecs and Incas didn’t use wheeled vehicles even though they had invented the wheel for children’s toys. The answer appears to be that the wheel isn’t history’s greatest invention unless you also invest in all the necessary road infrastructure to make wheels convenient. Otherwise, llamas or human porters are more economical.

But if in the 1990s it’s now a civil right that there be continual ramps around staircases to avoid discriminating against the disabled, then rolling bags for everybody are a no-brainer.

Why didn’t we build ramps for mothers pushing baby carriages in the 1970s and 1980s? Why did moms benefit only as an accidental by-product of society’s concern for the new identity politics? To my mind, mothers pushing baby carriages should rank up near the top of society’s priorities. But instead their needs don’t seem to come up much. Mothers with babies simply aren’t seen in modern America as one of the recognized groups whose rights must be protected from discrimination, so nobody much noticed that they’d benefit from ramps to get around staircases.

Paradoxically, the fact that it’s normal and healthy to think that we ought to look out for mothers with babies is why we didn’t. In post-civil-rights America, new mothers didn’t seem enough like victims of oppression and stigma in the past to be given more accommodations to make their lives better in the present.

Similarly, the delivery man lugging a stack of five-gallon bottles up the stairs to office water coolers would benefit from a ramp being installed, but he’s not an official protected class. Perhaps you could have made a civil rights case for a ramp on the grounds that gravity discriminates against women becoming delivery men in equal numbers to men. But not too many women want jobs wrestling with heavy objects, even if they don’t have to lug them up the stairs. So, once again, nobody bothered.

Thus, there hasn’t been much effort put into building coalitions of beneficiaries because the point of the ADA is not to provide the greatest good for the greatest number, but to assert the rights of a particular legally privileged class.

Consider the 1915 San Francisco City Hall, one of the most jaw-droppingly ornate civic buildings in America. Tom Wolfe praised it as “this Golden Whore’s dream of paradise.” It’s perhaps America’s most glamorous facility for a quickie city hall wedding. (Joe DiMaggio and Marilyn Monroe were married there in 1954.)

After the 1989 earthquake, $300 million was spent fixing it up, with a substantial fraction of that devoted to accessibility for the disabled through the famous portals used by Joe and Marilyn.

It’s interesting to read San Francisco’s 1999 press release on this effort, which devotes zero attention to coalition building with the many non-disabled who would also benefit from all the easier-to-use infrastructure. If official oppressed victim groups are genuine oppressed victim groups in modern society, you would see them emphasizing how much they share interests with unoppressed nonvictim groups such as mothers pushing baby carriages. But instead the city positioned its vast expenditure as San Francisco’s equivalent of Martin Luther King on the Selma bridge:

Until not long ago, there was a sign on the corner of Polk and Grove that pointed to the side entrance to the basement and said, “DELIVERIES AND HANDICAPPEDS.” That was the state of accessibility. That was our version of Jim Crow. Even when a ramp was installed in 1985, it went to the back door on Van Ness.

A person in a wheelchair has never been able to enter City Hall by the front door…until today, Tuesday, January 5th 1999 at noon!

The one accommodation they couldn’t finish by 1999 was how to make the county supervisors’ imposing podium accessible. Eventually, they proposed an ugly 10-foot ramp at a cost of $100,000 per foot, but after years of penny-pinching got it down to $70,000 per foot.

One out-of-fashion perspective for evaluating policies is 19th-century leftist Benthamite greatest-good-for-the-greatest-number utilitarianism. From a utilitarian standpoint, spending a fortune to mar the looks of perhaps the most splendid municipal building in America is more justifiable the more people there are who will benefit from the ramps.

But today, greatest-good-for-the-smallest-number anti-utilitarian minoritarianism is seen as self-evidently morally superior.

For example, to the Biden administration, making a farce out of NCAA women’s swimming to accommodate Lia Thomas is justified precisely because there are so few individuals like Lia Thomas. Just as damaging men’s college sports (e.g., ending many men’s wrestling programs to pay for women’s teams) to benefit the fewer number of women who want to play college sports was a good idea because fewer women than men are fanatical athletes, damaging women’s athletics to benefit Thomas and the tiny number of other individuals in Thomas’ protected class is self-evidently a morally correct cause.

It’s now considered in poor taste to say, “Well, there aren’t enough official victims with Disability X to justify expensive Accommodation Y, but if we add in all these nonvictims who’d benefit from Y as well, we see that mandating Y would be good for society as a whole.” Maybe that’s how they do things in France, where 145 IQ civil servants are supposed to decide what’s in the cost-effective best interest of the Republic as a whole. But in America, land of lawyers, we don’t like reaching intelligent compromises; we like having rights, the more absolute the better.

Hence, the ever-expanding sphere of the officially disabled and their accommodations.

For instance, if a trained seeing-eye dog is good, how about an untrained 125-pound Canary Island Fighting Dog emotional support animal? Can you take Ripper on the airliner?

Don’t be ridiculous, says the federal Civil Rights Division:

If the dog’s mere presence provides comfort, it is not a service animal under the ADA.

On the other hand…

But if the dog is trained to perform a task related to a person’s disability, it is a service animal under the ADA. For example, if the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, the dog is a service animal.

So if you train a Presa Canario to relieve your fear of flying by growling menacingly at your fellow passengers, which always cracks you up enough to take your mind off your anxiety disability, then he’s a legit service animal?

If they don’t like that argument, well, they’ll see you in court: you, your lawyer, and Ripper.


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