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Should Prohibiting Discrimination Against Those with Learning Disabilities Be Akin to Prohibiting the Making of Invidious Distinctions Based On Race?

September 14, 2011
By R. Tamara de Silva

August 22, 2011


"In approaching this problem, we cannot turn the clock back..."
Supreme Court Justice Earl Warren, 1954
Brown v. Board of Education


Over fifty-seven years ago, the Supreme Court voted unanimously to end segregation in schools in what many consider to be the most important legal case of this century. Brown v. Board of Education and the companion cases that followed, held that "separate was not equal," and state laws that required separation between the races in schools, offended both Equal Protection and Due Process. Brown found that state laws that drew invidious distinctions based upon race, prejudiced black students. After Brown, any state law that provided for separation based upon race became illegal-forever changing the complexion of the nation's schools, workplaces and neighborhoods.
It is inarguable that Brown has achieved an anti-discriminatory purpose and changed the nation-the degree to which it has succeeded merely as a desegregation measure or a political one, is widely debated but to a degree academic. Some of the smallest numerical minorities of non-white Americans, like Indian Americans are the most over-represented in colleges and universities. Yet, it is also true that below the college level, schools are almost as segregated now as they were fifty even years ago, but there are a complex set of causes for this-admittedly among them is some degree of desire to voluntarily segregate in housing locations.
Today race is not the consideration in need of anti-discriminatory policies in institutions of higher learning that it was when Brown was decided. One of the interesting consequences of Brown v. Board is that its scope has expanded to set the stage for new civil rights statutes like the Americans with Disabilities Act ("ADA"), which seek to protect in academia and in the workplace, people with disabilities. The ADA and its companion acts like the Individuals with Disabilities Education Act, have to some extent become the next generation of the civil rights statutes. The language of the ADA mimics the language of the Civil Rights Act of 1964. However, it is not clear how well the principles behind anti-discrimination in the context of race apply to the disabled, but particularly unclear when applied to the learning disabled.
Race is a stereotype that leads to a preference that is not per se rational-especially because of its application to all persons belonging to the race. As Justice Oliver Wendell Holmes said, "deep seated preferences cannot be argued about," and "The mind of a bigot is like the pupil of the eye. The more light you shine on it, the more it will contract."
It is never rational according to the principles behind Brown for an employer or an admissions officer to discriminate on the basis of race. It is only rational to discriminate based upon merit, because when race is factored out, a level playing field exists that allows for a more precise judgment on merit. Employers and admissions officers, who do not take race into consideration, will be better able to judge the strongest and most capable candidates.
However, the anti-discriminatory principles behind Brown, may not translate into rational preferences for an employer or an admissions officer in many instances of making choices between disabled and non-disabled persons. If an employer discriminates solely on race, this is not a rational decision but one made on stereotype-not likely to be reasonable on its own.
Since almost any principle can be carried to its logical end, some illustrations may be helpful. The preferences of an employer or an admission's officer on the other hand towards a non-disabled person are arguably rational against a disabled person. For instance, an employer may not rationally want to hire a blind person to be a sewing machine operator. An admissions officer will rationally want the applicant with the strongest intellect (other factors being equal) and not someone who has enormous difficulty reading or sitting through a lecture.
There is a crucial difference between civil rights statutes and those that prevent discrimination against the disabled. The civil rights statutes prohibit irrational discrimination, that is discrimination based solely on race, gender or national origin. Section 504 of the Rehabilitation Act, Individuals with Disabilities Education Act ("IDEA"), ADA and related statutes do not differentiate between rational discrimination and irrational discrimination. Nietzsche held great contempt for disabled persons as being dangerous to healthy and strong ones-an irrational opinion. Yet what about a manufacturer, who must take into account costs in hiring, and is faced with a choice between hiring a blind sewing machine operator and an additional employee to work side by side to assist, and one non-disabled person? The ADA prohibits rational, economic decision.
The ADA came into being by defining a disability as an impairment that substantially limits a major life activity-this impairment is measured against everyone else in society without the impairment. Major life activity has been held to include, caring for oneself, walking, seeing, breathing, working and learning. It has evolved to enlarge the definition of disability to include people with learning disabilities ("LD") which measure some cognitive impairment measured against an individual's own best self-what they would be were they not to have the LD.
This article is concerned not with physical disabilities, or mental disabilities such as Downs Syndrome or mental retardation but specifically learning disabilities and the extension of anti-discriminatory principles that came into existence to prevent discrimination based on race to people with LDs. This article does not dispute the existence of LDs like dyslexia and mental retardation including forms of severe autism, which are accepted even outside of the LD industry, by the outside scientific community as real.
The definition of a LD is genuinely inclusive:

"The child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards:

• Oral expression.
• Listening comprehension.
• Written expression.
• Basic reading skills.
• Reading fluency skills.
• Reading comprehension.
• Mathematics calculation.
• Mathematics problem solving.

The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in 34 CFR 300.309(a)(1) when using a process based on the child's response to scientific, research-based intervention; or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with 34 CFR 300.304 and 300.305; and the group determines that its findings under 34 CFR 300.309(a)(1) and (2) are not primarily the result of:

• A visual, hearing, or motor disability;
• Mental retardation;
• Emotional disturbance;
• Cultural factors;
• Environmental or economic disadvantage; or
• Limited English proficiency."

The definition of LD, some would argue, eradicates what was once thought to account for the difficulty of students to learn as well as others-natural intelligence, aptitude or that someone can be better at math than reading or vice versa. Tests like IQ tests are sometimes administered and if a child scores higher in an IQ test and relatively poorer in a math test or reading test-this is considered evidence supporting the diagnosis of LD. LD proponents imply that were it not for the occurrence of LD, children and adults would be as smart as they are supposed to be (their idealized selves) and perhaps smarter than other children and adults without LDs.
Some within the LD industry supported by nothing other than rank speculation, insist that historical figures like Einstein, Charles Darwin, Beethoven, Van Gogh and Churchill had some form of LD. But by the amorphous catch-all definition of LD-who living or dead, would not?
By law, LDs can be diagnosed by a child's parents and one teacher-there is no medical or scientific testing requirement to prove its existence. LDs also encompass ADD and ADHD. Predictably, this has led to skepticism and what critics point out is a specific lack of scientific rigor in this field.
There are other problems with the application of the ADA and related statutes arising from their definition, or lack thereof, of what constitutes a disability. Learning disabilities have exploded in occurrence among school age children. Asian students are least diagnosed with LD. All other ethnic groups appear to be over-represented. The relatively high and recent statistical occurrence of learning disabilities (suggesting an over-diagnosis), the fact that they disproportionately occur in the most affluent economic groups (suggesting a diagnosis of apologetic and hopeful parents) and their lack of scientific proof of its existence (in terms of objective double-blind tests, biological or genetic markers)-has further fueled skepticism. Some skeptics suggest that standardized testing and overly homogenic schooling leads to the diagnosis of LD because it is a fallacy that all people learn or process information the same way.
Another problem with including LD/ADD/ADHD as a disability under the ADA is that this diagnosis is rewarded in academia to the point of encouraging faking it. A person with a LD can take six hours to take the SAT as opposed to three hours. In colleges, an LD student can ask to take multiple choice tests home and ask for much more time to complete everything. This may provide an incentive to claim an LD. Harvard's graduating class in 2011 consisted of 2,058 students that were picked out of a field of well-qualified 22,955 applicants. Having three extra hours to take the SAT could be a competitive advantage.
LD is somewhat akin to the diagnosis of an epidemic in search of a disease. Nothing in this article is meant to cast aspersion on the existence of legitimate learning disabilities like dyslexia, which are real conditions. Unfortunately, the definition and diagnosis of LD is democratic and general enough to include anyone-it is there for the taking. There are a number of medical doctors that dispute the existence of learning disabilities completely, comparing it to a for-profit hoax because of the lack of scientific evidence and what they term is the massive for-profit industry that has mushroomed because of it.
In 2008, President George W. Bush, signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act") which became law in 2009. This act broadened the definition of disability to include "individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis." Wearing contact lenses or glasses, however, is not alone to be considered a physical impairment casting one with a disability under the ADA. Also, "reading and bending" were added to the ADA's original definition of "major life activities,"-the list now includes anything that impairs one's ability in, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working"-list is not apparently meant to be limited to these enumerated activities and may include others.
This presents a lessening of the protections afforded under the ADA to people with more legitimate disabilities, who need accommodations entering buildings, parking, require service animals, etc. throughout their entire lives. Using the principles behind Brown and its companion cases that made discrimination based upon race unlawful to extend to discrimination against people with LD/ADD/ADHD is a cheapening of a monumental case. An important principal carried to a seemingly silly conclusion.@
R. Tamara de Silva
Chicago, Illinois

The Suspension of Civil Liberties by Regulation in Colleges and Universities

August 31, 2011
The Suspension of Civil Liberties by Regulation in Colleges and Universities

By R. Tamara de Silva
August 20, 2011

The Obama Administration has dealt a solid blow to the civil liberties of all college and university students in America, and it has done so without fanfare or protest-in deafening silence, not even deemed ratings worthy by the media. New law was made via regulation, as agencies and departments of the Executive Branch have done for decades- by edict, or interpretation, or as in this case one seemingly unassuming, albeit verbose, letter.
By way of some background, all colleges and universities depend upon Federal financing of some sort. They have to abide by Federal law to receive Federal funds. On April 4, 2011, the Department of Education's Office for Civil Rights, distributed a 19-page letter explaining to all colleges and universities what their new policies must be upon learning of any instance of alleged misconduct by one student towards another based upon sex. The Department of Education established brand new responsibilities that all institutions of higher learning are now to follow pursuant to Title IX of the Civil Rights Act.
One of the frightening problems with this new edict is that the prohibited behavior is definitely subject to interpretation. It is not to me as a lawyer, prima facie clear what is prescribes and what is not. This puts a college age matriculant in clear danger.
The letter states, "Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX." But what is sexual harassment?
The question of what behavior is encompassed by sexual harassment is subject to shifting definition by continual litigation in any Federal courthouse on any given day. The boundaries of this definition simply cannot be presumed common knowledge to an 18 year old because it cannot succinctly be defined by 99 percent of all lawyers. Sexual harassment clearly encompasses speech, can it encompass other non-physical conduct? What about staring for a time period that is deemed harassing? A behavior like staring that may lack any intent to cause harm, may be offensive or harassing dependent on the personality, mores, cultural and religious background of the target. Admittedly, colleges and universities are some of the most diverse environments in America.
The letter implies that a school must investigate an instance of misconduct or harassment even if a complaint has not been made. Can the audience or witness to an alleged misconduct raise the alleged misconduct to a school official? Would issues of standing apply? What about the notoriously unreliable nature of eye-witness testimony?
"Sexual violence," according to the OCR letter, encompasses "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent." Having any disabilities (not sure whether this includes ADD, ADHD or the myriad of learning disabilities that are now exhibited by an unprecedently and statistically impossibly large portion of the student population), use of drugs and of course, alcohol would presumably remove consent. Would depression be considered mental impairment also? Obssessive compulsive behavior? Those exhibiting a tendency to "hoard" things? What else is encompassed by popular culture's understanding of mental impairment? More importantly, how is one to know whether anyone is mentally impaired upon a superficial interaction-much less an 18 year old at a frat party?
What is worse is that the procedures for investigating wrong-doing eliminate all pretense of safeguarding civil liberty to the extent that it is safeguarded at all in the criminal justice system.
For instance, the Obama Administration has de facto lessened the standard for culpability in alleged instances where college students are found guilty of assault, rape or harassment from what the justice system requires to be "guilt beyond a reasonable doubt," to the standard of by"preponderance of the evidence"-a standard that is never applied in criminal cases!
What is equally troubling is that as I have observed happen all to often at the state level, through administrative law judges and bureaucrats, laymen be they school administrators or bureaucrats, without the requisite training (in this case the law, the Constitution and its crucial protections of civil liberty) stand in judgment as both judges and juries in determining whether a student accused by another student of any misconduct, towards a female student would be found guilty or not.
In other words, the ability of a handful of administrators and bureaucrats to make decisions on criminal culpability that can alter the rest of a student's life, without any of the protections afforded by the rules of criminal procedure, the laws of evidence, or the Constitution's guarantees of the right to remain silent et. al is terrifying and I would argue violative of the Constitution.
I say this for many reasons upon a cursory review of the letter. For instance, the letter suggests that the accuser not be made to face the accused-violating the Sixth Amendment's right of confrontation in a proceeding that can become criminal. Also, the investigatory stage of the school's proceeding, which includes interviewing and taking testimony, can be followed by a more formal phase wherein the entire adjudication is repeated-in plain violation of double jeopardy. There are other instances but I leave a complete treatment of the letter for a more eager law review writer.
It is not known when administrators play Torquemada what if any rights are preserved or can be expected to be retained-in egregious violation of fundamental freedom and liberty. This new regulation presumes knowledge of a complex body of law that only a small percentage of its practitioners understand. What they law cannot clearly announce is prescribed, it must never punish-but it now will. Administrators and bureaucrats and even students-suited up to comprise disciplinary boards, will now have the power to be wrong in their play acting of lawyers and judges and jurors and in the process, ruin young and what I predict will be innocent lives-at the moment their adulthood commences.
Needless to say, the effect of this new regulation, enacted by letter, is likely to be disproportionately suffered by male students, who should now be taught before beginning their freshman years before any consideration of Plato or Aristotle, "a practical primer on sexual harassment law"-to be updated twice every week. @
R. Tamara de Silva

http://www.desilvalawoffices.com
August 22, 2011