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Finding the Gaps: A Comparative Analysis of Disability Laws in the United States to the United Nations Convention on the Rights of Persons with Disabilities (CRPD)
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
John R. Vaughn, Chairperson
May 12, 2008
Preamble
The purpose of this paper is to help the National Council on Disability (NCD), and others, better understand how the Convention on the Rights of Persons with Disabilities, if ratified by the United States, might impact U.S. disability laws by examining the degree to which U.S. law is consistent with the CRPD. The paper endeavors to analyze the issue in the way a treaty monitoring body would - to see if any area within federal law contravenes the Convention and/or whether there are gaps where legislation or practice might be introduced or reformed to ensure compliance. This is not an empirical analysis. NCD does not endorse, nor do we disclaim, the author’s conclusions. At this juncture, the CRPD has not been subjected to the scrutiny and interpretation of an international monitoring body. The CRPD creates a Committee tasked with reviewing regular reports of States Parties. It will ultimately be up to that Committee to fill in the gaps and choose between competing interpretations.
In November 2001, the United Nations General Assembly established an Ad Hoc Committee (AHC) to “consider proposals for a comprehensive and integral convention on the rights and dignity of persons with disabilities.” This action came after many years of advocacy by the disability community for the inclusion of disability in the UN human rights legal framework.
During the six years of the drafting of the Convention, the United States provided fundamental and valued technical assistance during the eight sessions of the Ad Hoc Committee. The U.S. delegation drew on our nation’s prolific experience with disability laws and policies in providing guidance on the foundational principles of the Convention. In both our mandated advisory role and that of promoting policy that enhances the lives of people with disabilities, the National Council on Disability (NCD) was pleased to support the efforts of the United States in the Convention development process.
The Convention opened for signature on March 30, 2007. Since that time, over 120 countries have signed the Convention and over 20 have ratified it.
On March 5, 2007, NCD wrote to the President of the United States regarding the Convention’s recent adoption. In that letter, the Council noted the Administration's concern that, for some countries, the Convention will provide a baseline standard rather than provide the full spectrum of rights available under the Americans with Disabilities Act (ADA). We urged the President to sign the Convention to provide the United States' clear support for the principles of this landmark treaty and to continue our country’s tradition as a world leader for people with disabilities.
Following the issuance of that letter, the Council met in Chicago in July 2007, and discussed drafting a paper to guide NCD’s future work on issues related to the Convention. This paper came about as a result of that discussion, and is intended to serve as background for the Council’s informed decision on the merits of signing and ratifying the CRPD, as well as an introspection of currently prevailing laws, policies, and practices more generally. NCD also hopes that one of the outcomes from the release of this paper will be that of focusing the United States disability community on a discussion that will allow for confirmation or rejection of the premises set forth in the body of the analysis, in pursuit of a better understanding of U.S. disability law and the Convention.
Table of Contents
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Executive Summary
This paper is geared toward understanding the degree to which U.S. law (in form, spirit, and practice) is consistent with the CRPD. Because any comparison is of necessity at times between “apples and oranges,” the paper endeavors to analyze the issue in the way a treaty monitoring body would - to see if any area within federal law contravenes the Convention and/or whether there are gaps where legislation or practice might be introduced or reformed to ensure compliance. The paper finds that, as a general matter, the aims of the CRPD are consistent with U.S. disability law. For the majority of articles, U.S. law can be viewed as either being of a level with the mandates of the Convention or capable of reaching those levels either through more rigorous implementation and/or additional actions by Congress. However, this paper also identifies several CRPD Articles that illustrate significant gaps between United States disability laws and the Convention.
Purpose
Bearing in mind that United States domestic civil rights laws and international human rights laws operate from distinct, although not necessarily mutually exclusive perspectives, this paper provides an initial comparison of the articles comprising the United Nations Convention on the Rights of Persons with Disabilities (CRPD), adopted by the General Assembly on December 13, 2006, and opened for signature on March 30, 2007, with relevant United States federal laws relating to persons with disabilities.
Current U.S. disability laws run the gamut. The Americans with Disabilities Act, the Individuals with Disabilities Education Act, § 504 of the Rehabilitation Act, and the Fair Housing Act are the most well known. But disability laws can be found sprinkled throughout other statutes as well, such as the Voting Rights Act and Vocational Rehabilitation Act. These laws collectively aim to protect Americans with disabilities from discrimination.
This paper is geared toward understanding the degree to which U.S. law (in form, spirit, and practice) is consistent with the CRPD. Because any comparison is of necessity at times between “apples and oranges,” this paper endeavors to analyze the issue in the way a treaty monitoring body would - to see if any area within federal law contravenes the Convention and/or whether there are gaps where legislation or practice might be introduced or reformed to ensure compliance. At this juncture, the CRPD has not been subjected to the scrutiny and interpretation of an international monitoring body. The CRPD creates a Committee tasked with reviewing regular reports of States Parties. It will ultimately be up to that Committee to fill in the gaps and choose between competing interpretations. Having said that, it is possible to set forth a plausible estimate of the CRPD’s reach against which to analyze U.S. law.
Synopsis of Analysis
This paper identifies areas in which U.S. law is harmonious to that of the CRPD’s requirements, as well as existing gaps in U.S. law when compared to each Article in the CRPD. It also highlights potential areas within the body of U.S. disability laws that would require examination if the U.S. either signed and ratified the CRPD, or desired to have its domestic disability laws and policies be of a level with the Convention’s coverage.
This comparative analysis is an extremely important tool if our nation is to consider joining the global community as part of this historic Convention, or simply to reevaluate domestic laws and policies in a manner that would respond to current shortcomings and thereby maintain America’s precedence in the field. This paper can therefore serve as background for an informed decision on the issue of signing and ratifying the CRPD, as well as an introspection of currently prevailing laws, policies, and practices more generally. Although the current U.S. administration does not lean towards signing or ratifying the Convention, this may be influenced by a lack of crucial information towards making that decision. Alternatively, future administrations may take a different approach to international treaties generally, and the CRPD specifically.
Several points bear mentioning. The U.S. legal system is a federalist one, meaning that both state and federal constitutions, statutes, and common law impact the rights of persons with disabilities. This paper focuses nearly exclusively on federal law, and specifically on the primary statutes. It is not intended, nor can it be within its mandate, absolutely comprehensive in scope. Thus, while constitutional law and federal statutes rest at the top of the federal disability policy pyramid, there are multiple and various programs within the Executive branch that impact the lives of people with disabilities, although they will vary greatly in terms of longevity, sustainability, and actual impact. The paper discusses these programs to the extent that they have generally been noted by experts in the field to have been sustained and effective.
Explanation of Key Findings
As a general matter, the aims of the CRPD are consistent with U.S. disability law, in respect of which significant segments of the CRPD drew inspiration. For the majority of articles, U.S. law can be viewed as either being of a level with the mandates of the Convention or capable of reaching those levels either through more rigorous implementation and/or additional actions by Congress. In addition to highlighting areas of harmonious thresholds of legal protection, this paper also identifies several CRPD Articles that illustrate gaps between United States disability laws and the Convention. The Articles identified as currently having the most significant gaps between U.S. law and policy and the CRPD are as follows:
Article 5 - Equality and Non-Discrimination. Current U.S. law and policy lacks equality measures such as vocational training, affirmative action, quotas, and job set-asides.
Article 6 - Women with Disabilities. Current U.S. law and policy lacks positive measures sufficient to ensure the full and equal enjoyment of all human rights.
Article 7 - Children with Disabilities. In the main, State rather than U.S. law, governs the rights of children.
Article 8 - Awareness raising. Current U.S. law and policy has no affirmative mandate to alter social stereotypes.
Article 9 – Accessibility. Current under-enforcement of federal laws create a gap between legal requirements and reality.
Article 11 - Situations of risk and humanitarian emergencies. Current U.S. laws and policies prohibiting discrimination in the provision of services relating to emergency services have not been implemented.
Article 12 - Equal recognition before the law. Legal capacity is governed primarily by State-level law.
Article 13 - Access to Justice. U.S. courts have interpreted physical access to court services to be limited by a fundamental alteration defense, and have not sufficiently ensured other access to justice.
Article 16 - Freedom from Exploitation, Violence, and Abuse. Current U.S. law and policy does not provide for proactive education and training to prevent exploitation, violence, and abuse.
Article 18 - Liberty of movement and nationality. Current U.S. immigration policy restricts potential residents and certain visitors with disabilities.
Article 19 - Living independently and being included in the community. Current U.S. law and policy limits the right to live in the community to services that do not cause fundamental alterations.
Article 20 - Personal mobility. Current U.S. law and policy does not recognize a right to the provision of medical and assistive devices in the manner required by the CRPD.
Article 23 - Respect for Home and the Family. State, rather than U.S. law, mainly governs these rights.
Article 24 – Education. Current U.S. law does not seek to develop children’s full potential but instead requires an adequate education.
Article 25 - Health. State, rather than U.S. law, mainly governs this right.
Article 27- Work and Employment. Current U.S. law and policy does not provide equality measures, such as vocational training, affirmative action, or job set-asides.
Article 28 - Adequate standard of living and social protection. Current U.S. law does not recognize economic or social protections as rights.
Article 29 - Participation in Political and Public Life. Current U.S. law explicitly protects most of what the CRPD envisions, yet has been laxly implemented in the field of voting rights.
Article 30 - Participation in Cultural Life, Recreation, Leisure, and Sport. Current U.S. law does not recognize cultural, recreational, leisure or sport participation as an affirmative right.
Article 32 - International cooperation. Current U.S. law does not mandate inclusive-development practices abroad.
It is important to emphasize, however, that these gaps are capable of being narrowed or eradicated through either more rigorous implementation of existing U.S. laws and policies, and/or through Congressional action.
Conclusion and Recommendations
The ultimate conclusion of this paper is that there is no legal impediment to U.S. signature and ratification on the basis that, in large measure, the legal standards articulated in the CRPD align with U.S. disability law.
The U.S. disability rights agenda, premised on a social model of disability, has exerted a powerful international influence in revising legal regimes affecting disabled persons. But the U.S. scheme, which is primarily an antidiscrimination one, has limits that are reflected in the gaps discussed above. Specifically, it has proven difficult to transform society’s institutional structures and attitudes towards marginalized individuals. Further complicating the U.S. disability antidiscrimination project have been cramped judicial interpretations on threshold definition of disability issues,[1] as well as uneven implementation of existing federal law.[2]
An example of all of these factors involves employment levels for people with disabilities. Observers have alternatively blamed restrictive Supreme Court decisions and noted the abysmal success rates of ADA Title I plaintiffs. Just as importantly, however, are the missing pieces in the U.S. disability policy scheme, including health insurance gaps and lack of training and rehabilitation services, which can actually create disincentives and barriers to work. The overall U.S. disability employment policy has been criticized as non-integrated and lacking in extra-statutory support.[3]
These gaps are capable of being narrowed or eradicated through either more rigorous implementation of existing U.S. laws and policies, and/or through Congressional action. To the extent that this paper identifies gaps or potential inconsistencies between U.S. disability law and the CRPD, the tools of law reform and ratification processes could serve to address and facilitate ratification by the United States.
Signature by the United States of the CRPD would be a realistic aim, insofar as signature implies taking no steps that would undermine the principles of the treaty in question but does not render the treaty legally binding on the United States unless and until ratification is undertaken. Any subsequent ratification process would, as with any human rights convention ratification, entail a careful review of existing law and could be coupled with law reform in targeted areas where appropriate, as well as the use of other tools of ratification, including the attachment of reservations, declarations and understandings that have facilitated U.S. accession to human rights conventions.[4] To provide one illustration, when the U.S. ratified the Convention on the Elimination of All Forms of Racial Discrimination, it attached a reservation in respect of provisions that could have the effect of restricting American constitutional and federal laws according extensive protections on individual freedom of speech. This reservation served to facilitate U.S. ratification of that Convention, and the mechanism of reservations, declarations and understandings would be a tool available to the United States in the case of CRPD ratification.[5]
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Introduction
The body of this Paper offers an analysis, by article, of the relationship between the CRPD and relevant sources of United States law. Although these analyses will generally proceed individually by CRPD article and in chronological order, at two points it deviates from this structure. First, the Preamble, Article 1 (Purpose), Article 3 (General Purpose), and Article 4 (General Obligations) are grouped together and compared with the legal framework in the United States affecting person with disabilities. Secondly, this paper groups Articles 33-40, which address monitoring and implementation, together in one discussion.
This Paper also contains a detailed appendix which includes the text of each article of the CRPD followed by a description of corresponding sources of central United States law. This appendix provides additional context to the discussion of the individual articles contained in the main body of the Paper.
Preamble, Articles 1 (Purpose), 3 (General Principles), & 4 (General Obligations)
The United States legal framework is directed toward civil and political (or negative) rights protection, and leaves economic, social, and cultural (or positive) rights, when these are provided, to Congress. Thus, concepts from the CRPD (as well as the other human rights treaties referenced and incorporated in the Preamble) such as non-discrimination can be seen as falling readily within the gambit of civil rights protection. By contrast, CRPD notions such as respect, dignity, equal worth, the full enjoyment of all rights, equality of opportunity, mandated legislation and governmental activities, the use of special measures as well as other economic and social rights, and duties relating to proactive alteration of the social understanding of disability, lie beyond the currently conceived parameters of United States law. This basic premise will be developed throughout this paper in the specific context covered by each individual article of the CRPD.
Article 2 - Definitions
United States law is on level with the CRPD in requiring the provision of reasonable accommodations, in limiting that provision at a level when the accommodation imposes an undue hardship upon the provider, and in defining as discriminatory the non-provision of a reasonable accommodation.
United States law differs from the CRPD in that the latter does not directly define the term “disability.”[6] However, the CRPD acknowledges the social construction of disability in two separate places.[7] Depending upon the ultimate interpretation by the monitoring committee,[8] this definition may ultimately be harmonious with the definition set forth in the ADA and the Rehabilitation Act.
Article 5 – Equality and Non-Discrimination
Current United States law is quite consistent with Article 5 to the extent that it prohibits discrimination and seeks equality through the provision of reasonable accommodations. The U.S. experience with reasonable accommodation was referenced in the UN negotiations on the CRPD. Nevertheless, it should be noted that the reasonable accommodation provision of U.S. disability statutes has not been uncontroversial. There is a documented view amongst some sectors of the public that people with disabilities are getting special treatment or perks.[9]
At the same time, U.S. laws fall short of the CRPD in the extent to which they “take all appropriate steps to ensure that reasonable accommodation is provided” or provide “[s]pecific measures” that “accelerate or achieve de facto equality of persons with disabilities.” Thus, programs that are contemplated by the Convention, such as affirmative action, quota regimes, government procurement contracts, or set aside disability-specific professions, are beyond the concept of equality as currently understood in U.S. law and politics. These types of schemes, however, are within Congress’s spending power to authorize if it so chooses.
Article 6 – Women with Disabilities
Commentators have noted the problems of intersectionalities of discrimination on the basis of race and sex.[10] Currently, however, federal disability law does not acknowledge this particularly vulnerable population. Any claims for discrimination on the basis of sex and disability must proceed under different statutory theories. Moreover, to the extent that measures as contemplated by the CRPD exceed U.S. concepts of civil rights equality, they are not currently protected or provided for, although with legislative will they could.
Article 7 – Children with Disabilities
Like most areas touching on family law, the status and rights of children are more a province of the states than the federal government. So while there are laws protecting people with disabilities generally, and children with disabilities in the school setting, there are no specific antidiscrimination laws aiming at the protection of children with disabilities more globally. This circumstance is perhaps highlighted by the United States being one of only two countries not to have ratified the Convention on the Rights of the Child.[11]
Article 8 – Awareness Raising
Since deregulation of the broadcasting industry in the 1980s, the federal government no longer requires media providers to act in a socially responsible manner as a condition of licensing. Thus, regulatory mechanisms do not mandate that media outlets broadcast positive imagery of people with disabilities, or to foster attitudinal changes. Moreover, regulation of public service announcements (public awareness raising advertisements produced by a variety of sources, including federal government agencies) which could fulfill some of the mandates set forth in the CRPD, is left to the Advertising (Ad) Council, a non-profit entity that distributes the majority of produced public service announcements. Thus, United States law does not affirmatively require the breakdown of stereotypes through media outlets. Furthermore, one could argue that First Amendment rights relating to freedom of expression protect media outlets from being forced to broadcast particular content.
The Individuals with Disabilities in Education Act (IDEA) requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs, however it does not affirmatively mandate the breakdown of social stigma relating to children with disabilities.
NCD has evaluated IDEA enforcement over the years and judged it to be a chronic problem area.
Congress, however, could utilize its spending powers to encourage larger social attitudinal changes by providing subsidies or tax incentives to media outlets, or grants to educational facilities, that worked towards breaking down historical stereotypes relating to disability.
Article 9 - Accessibility
United States law covers many of the issues addressed in Article 9, but there are some gaps. The laws discussed below prohibit certain actions and even require some affirmative steps, such as barrier removal. But these laws do not generally force private or public actors to disseminate information or to provide training.
Although Internet websites operated by local, state, or federal governments are required to be accessible under Title II of the ADA and the Rehabilitation Act, the case law has been uneven in applying Title III of the ADA to privately owned and operated websites. In no case has Title III of the ADA been held to extend to stand-alone private websites.
While the laws discussed above have relatively broad coverage and there has been promulgation of standards (e.g., the ADAAG Guidelines for physical places and Access Board for methods of electronic information), there are few current monitoring sources to assess how much progress has been made. Title III of the ADA, in particular, has been criticized for being chronically underenforced.[12] Moreover, both Title II and Title III obligations are subject to a “fundamental alterations” or “undue burden” defense. Accordingly, although current U.S. law may fall short of that which is envisioned by the CRPD, a more forceful implementation of existing law and/or measures by Congress could readily bring U.S. law on a level with the CRPD.
Article 10 – Right to Life
United States law is harmonious with the CPRD in so far as it prevents the State from interfering with its attainment.
Article 11 – Situations of Risk and Humanitarian Emergencies
Hurricanes Katrina and Rita poignantly demonstrated the inadequacy of United States disaster preparedness for meeting the needs of persons with disabilities.[13] Notably, persons with disabilities and their needs were glaringly absent from the National Response Plan issued by the Department of Homeland Security the previous year.[14] Moreover, federal and state agencies failed to incorporate the requirements set forth in an Executive Order[15] and later, recommendations contained in an interagency report[16] before the disasters struck.[17] Bills that would have remedied some of the defects in federal coverage by requiring more effective implementation of disability disaster preparedness policies failed in both the House and Senate.[18] The National Council on Disability has been tasked with evaluating and making recommendations regarding persons with disabilities relative to Homeland Security issues, and so continues to hold public forums on this topic.[19] Hence, both legal protection and actual practice in the United States currently lags behind the mandates contained in the CRPD, although a more forceful implementation of existing law and/or measures by Congress could readily bring U.S. law closer to the CRPD.
Article 12 – Equal Recognition before the law
Because individual state laws governing the legal capacity of persons with disabilities are assessed on the basis of being rationally related to forwarding a legitimate state purpose, historically Americans with disabilities have been subjected to varying levels of stigma and subordination.[20] Indeed, an extensive catalogue of just such state-sponsored enactments which violated the rights of persons with disabilities was appended to Justice Breyer’s dissent in Univ. of Ala. v. Garrett.[21] An extreme, but classic and not yet explicitly overruled instance of upholding a state’s legitimate interest as against the autonomy and well-being of persons with disabilities is Buck v Bell.[22] In Buck, the Supreme Court upheld the right of a state to sterilize “feeble minded” individuals on the ground that it was in the best interest of both the Commonwealth of Virginia and the sterilized individuals “in order to prevent our being swamped with incompetence.”[23] Thus, there is reason to be concerned that persons with disabilities in the United States are still not accorded their full rights of legal capacity, although the ADA and Rehabilitation Acts have had the beneficial effect of extending disability antidiscrimination principles to these issues. However, more rigorous enforcement by the federal government, and/or additional programs, could better ensure the implementation of these fundamental rights.
Article 13 – Access to Justice
The combination of the ADA, Rehabilitation Act, and Architectural Barriers Act provide extensive protections in the justice system for people with disabilities. These statutes, however, do not require appropriate training, as does Article 13, although no doubt some covered entities have trained their personnel to create compliance with federal law.[24] It should be noted, however, that access to justice, specifically courthouse accessibility, has often been offered as an example of an area where there is a substantial disconnect between what the law requires and what actually happens.[25] At this point, it is unclear how far Tennessee v. Lane, which holds that individuals can sue for damages under Title II of the ADA for inaccessibility in state courts, actually extends. In Goodman v. Georgia,[26] the Court declined to address whether Lane applied to other types of violations of the criminal justice system. Despite the ADA's prohibition against disabled persons being "excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity," the Court in Lane confined its holding to one individual's right to physical access to courts. In so doing, it left open the question of whether people with disabilities can gain relief when denied access to other state facilities, programs, and services, even those involving the court system; including, for example, the rights of witnesses, jurors, or other participants in the justice system. Moreover, although the reasonable modification requirement of Title II does not include an undue hardship defense or fundamental alterations defense, courts have read them into the statute.[27] Thus, courts determining whether a modification will constitute a fundamental alteration consider whether the change will cause an undue financial or administrative burden on the entity. Therefore, despite broad protective mandates, there are reasons to be concerned about the extent to which individuals with disabilities receive full and meaningful access to justice in practice. Current restrictive interpretations are not inevitable, however, and with more vigorous enforcement and different interpretations of existing law, U.S. law should not necessarily fall short of that which is envisioned by the CRPD.
Article 14 – Liberty and security of the person
On its face, United States law seems harmonious with that of the CRPD, although both sets of legal directives face challenges in their respective effective implementation.
One element that creates a possibility for a gap in U.S. legal protection is that the provision of services to persons with disabilities under United States law could be circumscribed if it causes a fundamental alteration to a given state’s program. By contrast, the CRPD mandates that the “existence of a disability shall in no case justify a deprivation of liberty.”
Moreover, as discussed in Article 12, because state laws directly control issues relating to capacity, courts assess whether a statute or practice that disadvantages persons with disabilities is “rationally related” to a legitimate state purpose. In consequence, Americans with disabilities have historically been subjected to varying levels of stigma and subordination. Thus, the protection of liberty and security of persons with disabilities may be vulnerable to judicial perspective. Therefore, while as currently interpreted and enforced, there appears to be a gap between U.S. law and the CRPD, there is no reason why with more vigorous interpretation and/or action by Congress, the two could not be on an equal level.
Article 15 – Freedom from Torture or Cruel, Inhuman, or Degrading Treatment or Punishment
In Buck v. Bell,[28] the Supreme Court upheld a Virginia statute requiring compulsory sterilization of people with mental retardation at the age of 18. Although never explicitly overruled, this case should no longer be considered good law. Starting in the 1980’s, there was a line of deinstitutionalization cases that culminated in the landmark Supreme Court case of Youngberg v. Romeo,[29] which affirmed the Fourteenth Amendment Due Process clause rights of individuals with intellectual disabilities to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate habilitation training as reasonably might be required by those interests.[30] The Civil Rights of Institutionalized Persons Act[31] also empowers the Attorney General of the United States to investigate confinement conditions at state run institutions, including prisons, nursing homes, and institutions for people with psychiatric or developmental disabilities. In the event the Attorney General believes those conditions are “egregious or flagrant,” subject individuals to “grievous harm,” and are part of a “pattern or practice” of undermining individuals’ full enjoyment of their rights, the Attorney General may initiate a civil law suit.[32]
United States law seems therefore to be harmonious with the prohibitions set forth in the CRPD. Ultimately, however, the efficacy of these protections depends upon rigorous implementation.
Article 16 – Freedom for Exploitation, Violence, and Abuse
The primary U.S. response to the problem of exploitation, violence, and abuse against people with disabilities is antidiscrimination law. Its success at doing so, at least in a targeted sense, is certainly an open question. People with disabilities continue to be the targets of harassment on the basis of disability, particularly in their workplaces and schools, in a way that antidiscrimination law has not been interpreted to fully prevent.[33] At the heart of this shortcoming is reliance on negative rights and private enforcement mechanisms. This dynamic, and the consequential result, is at odds with the human rights approach contained in the CRPD. However, proactive measures are within the power of Congress to provide, if it so chooses.
Article 17 – Protecting the Integrity of the Person
Current United States law, both statutory and constitutional, formally prevents forced medical treatment or restraint against a patient’s will, except in limited circumstances. At the same time, protection of these rights heavily depends upon their enforcement, including the perceptions of judges and other adjudicators regarding the equality of person with disabilities. With proper enforcement, U.S. law should be on the level with what the CRPD envisions.
Article 18 – Liberty of movement and nationality
On its face, United States law seems generally harmonious with that of the CRPD. And both sets of legal directives face challenges in their respective effective implementation.
One area that seemingly divides the CRPD from U.S. legal protections is that the treaty prohibits denials of nationality and of citizenship on the basis of disability, whereas American immigration policy restricts certain visitors and future residents with disabilities. For example, immigrants with HIV status have been precluded from entering the United States since 1987,[34] and since 1990 Congressional exclusion of immigrants from receiving public benefits, including health care coverage, have acted as a disincentive to immigrate.[35] Thus, while United States law currently falls short of the rights enumerated in the CRPD, it could be readily amended to reach the CRPD threshold.
Article 19 – Living Independently and being included in the community
It must be underscored that the right to live independently and to be included in the community is viewed by many disability rights advocates as central to their lives, and the logical outcome of the protections contained in other CRPD articles; specifically, independent living is often contrasted by those advocates with the type of institutionalization prohibited by Articles 14-17. [36]
Unlike the CRPD mandate that states “take effective and appropriate measures” to ensure that persons with disabilities live independently and in the community, the right as enunciated in Olmstead is not as strong.[37] When determining whether conditions, pursuant to the ADA’s limitations cause a fundamental alteration in the provided services, U.S. courts may take into account the economic impact on a state of moving individuals to community-based homes.[38] Specifically, although the reasonable modification requirement of Title II does not include an undue hardship defense, courts have generally read undue hardship into the fundamental alteration defense. Thus, courts determining whether a modification will constitute a fundamental alteration consider whether the change will cause an undue financial or administrative burden on the entity. For example, states can consider whether deploying the resources necessary for community-based living for some individuals with cognitive disabilities will deprive other individuals with cognitive disabilities from adequate institutional-based care.[39] This is a lower threshold than that required by the CRPD.[40]
As discussed supra in the context of accessibility, and infra in the contexts of personal mobility, health, adequate standard of living and social protection, and participation in cultural life, recreation, leisure and sport, the threshold required to ensure that persons with disabilities are not discriminated against in the provision of state provided services (below a fundamental alteration), is likely inferior to that mandated by the CRPD. This, however, does not rest on an inevitable or necessarily uniform interpretation of United States law.
Article 20 – Personal Mobility
Although the United States provides medical benefits to certain persons with disabilities through Medicaid and/or Medicare, these programs are governed through Congressional appropriations. As such, they as not guaranteed as “rights.” Further, the extent of the provision of any existing services to persons with disabilities is limited to those which do not cause a fundamental alteration to the individual state programs providing those services. Thus, the extent of how effective measures are, whether assistive devices and services are affordable, the amount (if any) of training, and the autonomous choices left to individuals with disabilities, are all subject to more tightly governed restrictions than are those under the CRPD. Last, positive rights aspects of the CRPD relating to “encouraging” service providers to account for the needs of persons with disabilities lies beyond the purview of rights as currently conceived in United States law. It is within Congress’s power, however, to amend United States law to bring it commensurate with the CRPD.
Article 21 – Freedom of Expression and Opinion, and Access to Information
U.S. law is consistent with Article 21. Government at all levels – federal, state, and local – are under an obligation to provide effective communication to people with disabilities, which includes providing information in accessible formats. The federal government has also passed statutes requiring privately owned places of public accommodation to provide accessible forms of communication. Again, it must be noted that this is subject to the fundamental alteration and undue burden defenses, and enforcement of these rights is generally left to individual complainants. There is no reason why, with adequate enforcement, U.S. law could not be on the level with the CRPD.
Article 22 – Respect for Privacy
As discussed above, current United States law does not include disability as a specific “hate crime.” Legislation is currently under consideration that would expand the existing hate crimes statute to include crimes motivated by a person’s disability, amongst other categories. The ADA protection on confidentiality of medical records is one of the few per se violations of the Act. Generally speaking, the applicable United States laws on these issues appear to be administered evenhandedly, although not with any particular protections for disability. Thus, there is no reason why U.S. law can and should not be interpreted to be consistent with the CRPD.
Article 23 – Respect for Home and the Family
In practice, States and State courts often appear to rely on stereotypes in determining custody disputes involving parents with mental or physical disabilities, even in cases citing the “best interest of the child” standard.[41] This is an area where although federal law formally requires one thing, the actual practice in state proceedings may not always comply. Moreover, many states do not consider parental termination proceedings to be “programs, services, or activities” for purposes of Title II of the ADA, thereby removing these proceedings from ADA protection and opening the door for disability discrimination based on stereotypes.[42] Therefore, while at present U.S. law may fall short in practice from that envisioned by the CRPD, properly enforced U.S. law could be at the level envisioned by the Convention.
Article 24 - Education
United States law has evolved significantly from a time when children with disabilities were generally educated, if at all, in separate specialized institutions.[43] Nevertheless, there are some gaps with what Article 24 sets forth. Current federal law has no definitive provisions facilitating the learning of Braille, facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community, or provisions to employ teachers with disabilities. To the extent that such activities occur, they fall within the province of what states or Congress (through its spending clause powers) may or may not do.
Moreover, in terms of the Article’s recognition of the need of the development by persons with disabilities of their talents to their fullest potential, there is a much criticized Supreme Court decision which actually cuts the opposite way. In Board of Education v. Rowley,[44] the Supreme Court considered the contours of the requirement of free appropriate public education. The Court held that the IDEA requires educational programming that calculated to provide some educational benefit to the child, as opposed to educational services designed to maximize the child’s educational potential.
Ultimately, while prevailing, the Rowley interpretation is not inevitable. The IDEA is passed pursuant to Congress’s spending clause powers, and within these limits Congress has adequate power to appropriate resources to create more robust opportunities for children with disabilities to the level of the CRPD.
Article 25 - Health
The United States relies primarily on private life and health insurance and medical services, buttressed by the Medicaid and Medicare systems. Although these programs do provide certain services and coverage for some people with disabilities, the main apparatus constraining their application to people with disabilities is antidiscrimination law, such as the ADA or Rehabilitation Act. As discussed above, in some cases this has been successful; in others, not as much.
The existing mosaic of healthcare related disability law has been much criticized for not well serving people with disabilities.[45] The backdrop to this criticism is that “many of the services people with disabilities need for independence and labor force participation – personal assistance and assistive technology being the most obvious – are typically regarded as ‘medical’ services for which the health insurance system is responsible.[46] The problem is that private insurance often places severe limitations on coverage for disabling conditions.[47] Private insurance policies can exclude coverage for certain named conditions,[48] or impose annual or lifetime caps on permitted reimbursement for specific conditions (even if these caps are way below what is actually required).[49] Moreover, private insurance policies may be particularly inappropriate and ineffective regarding people with disabilities because they trend toward acute, as opposed to chronic care, and typical requirement that covered treatments be “medically necessary,” which usually excludes durable medical equipment and assistive technologies.[50] Public insurance, in the form of Medicaid or Medicare, incorporate restrictions that create disincentives for people with disabilities to work. The ability to receive Medicare is contingent on a showing that an individual is unable to do “any substantial gainful work which exists in the national economy.”[51] And although Ticket to Work and Work Incentives Improvement Act (TWWIIA),[52] makes it possible for people to work and retain Medicare eligibility for eight years, benefits recipients who reach the end of that period abruptly lose their Medicare eligibility. Although Medicaid varies from state to state, it generally contains similar disincentive rules.[53]
Finally, despite an Executive Order reinforcing the Olmstead decision[54] and the Centers for Medicare and Medicaid Services distribution over $120 million in grants in 2001 and 2002 to help states increase community based integration for people with disabilities, states are facing a lack of coordinated community-based services and a shortfall of funds in carrying out the integration mandate. The Olmstead mandate is also not unlimited; it considers whether changes will cause an undue financial or administrative burden on the entity.[55]
Although currently U.S. law, as implemented, falls short of what is envisioned by the CRPD, the direction of U.S. law and policy is trending toward the threshold put forth by the CRPD, and that standard could be achieved with proper implementation and/or action by Congress.
Article 27 – Work and Employment
Gerard Quinn has stated that “the mischief that Article 27 is directed towards is the long shadow cast of chronic underemployment of persons with disabilities.”[56] The United States approach – which, as it relates to employment, is an antidiscrimination approach – has had mixed success.
Commentators often blame the narrow reading the Supreme Court has given to the ADA, particularly to its definition of disability. In Sutton v. United Airlines, Inc.,[57] the Court held that in considering whether an impairment “substantially limits” a major life activity, courts should consider the individual's mitigating measures.[58] In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,[59] the Court held that major life activities are “activities that are of central importance to most people's daily life.” The Court has also sanctioned a narrow reading of the “regarded as” prong of the definition of disability,[60] which many had presumed was intended to be a catch-all provision.[61]
Commentators have also noted that the current disability legal and policy scheme, particularly regarding insurance, creates disincentives for people to work, and therefore may be actually working against Title I’s goals.[62]
One finding that has been well documented is that most Title I ADA plaintiffs lose. Ruth Colker, for example, has shown that contrary to media perceptions, plaintiffs usually lose Title I cases. Her research shows that defendants prevail in 94% of ADA Title I cases at the trial level and in 87.5% of cases at the courts of appeals.[63] These conclusions are supported by other researchers like the American Bar Association (“ABA”), which compiles ADA Title I results for each year. For 2003, like previous years, the ABA found that plaintiffs lost Title I cases a vast majority of the time.[64] Similarly, Lou Rulli, focusing on Title I cases filed in the Eastern District of Pennsylvania, has found that the success rate is so low that the private bar is hesitant to take these cases.[65]
The biggest gap in coverage between the U.S. disability scheme – which again, from an antidiscrimination perspective is quite strong- and the CRPD involves job training and rehabilitation. Title I was intended as the most expedient method of bringing about social and economic equality for people with disabilities, but additional policy measures supporting Title I have been gradual and uneven.[66] It took nearly a decade, for example, to pass initiatives that allowed disabled persons receiving public assistance to maintain their health care coverage while transitioning to employment.[67]
Consequently, while the ADA forbids employment discrimination the means by which disabled Americans can obtain and keep gainful employment have not been provided. This is evidenced empirically by the fact that post-ADA disabled Americans continue to experience disproportionately high rates of unemployment.[68] The problem is heightened in the most socially marginalized among people with disabilities -- those facing double discrimination (e.g., women and ethnic minorities with disabilities), and the intellectually and psychosocially disabled. Thus, employment-related antidiscrimination prohibitions are only effective when linked with equality measures that alter workplace hierarchies and cultures. These latter type programs are typical of international approaches to disability law and policy, especially within the CRPD, but excluded by the U.S. perspective of civil rights. Therefore, although the current U.S. disability law and policy scheme has fallen short of what is envisioned by the CRPD, there is no reason that a combination of aggressive implementation of existing law, as well as additional steps by Congress, could not approximate the CRPD’s more comprehensive scheme.
Article 28 – Adequate standard of living and social protection
Although the United States provides an economic safety net to persons with disabilities living in impoverished circumstances, these social benefits are governed through Congressional appropriations. As such, they as not guaranteed as “rights.” Further, the extent of the provision of any existing services to persons with disabilities is limited to those which do not cause a fundamental alteration to state programs providing those services. Last, positive rights aspects of the CRPD relating to an “adequate standard of living” including food, clothing, housing, social protection, poverty alleviation, and family training and support, go beyond what rights are explicitly protected under United States law. While U.S. legal protections therefore fall short of those contained in the CRPD, Congress could affect such outcomes by utilizing its spending power.
Article 29 – Participation in Political and Public Life
With the passage of HAVA, United States law now expressly provides that people with disabilities have the right to vote secretly and independently. Unlike Titles II and III of the ADA, HAVA provides no fundamental alteration or undue burden defense. For some time, United States law has allowed people with disabilities the right to vote with assistance, should they choose. So at least on paper, United States law is quite strong in protecting the voting rights of people with disabilities. It must be noted, however, that this is one area where many policy bodies and commentators have noted the disconnect between law and reality, and so at present the actual voting rights protection in the United States may lag behind that which is envisioned in the CRPD. In the 2000 presidential election (which was pre-HAVA), the Government Accountability Office conducted a survey of accessibility of polling places.[69] This study found that 84% of polling places had one or more features that could present challenges to physical access for voters with disabilities. Impediments included high door thresholds, ramps with steep slopes, and lack of accessible parking, among others. Over a quarter of the counties choosing polling places did not use accessibility as a criterion in making their selection. Social science research demonstrates that the cumulative effect of these problems is decreased voting levels for people with disabilities. The 2000 National Organization on Disability/Harris Survey found that voter registration is lower for people with disabilities than for people without disabilities (62% versus 78%, respectively).[70] United States law does not provide for set-asides or quotas in elected offices for people with disabilities.
Article 30 - Participation in Cultural Life, Recreation, Leisure, and Sport
The United States’ approach to participation in cultural life, recreation, leisure, and sport is based almost entirely on an antidiscrimination model. This means that to the extent that such opportunities exist for the general population, the federal government provides a legal right to people with disabilities to participate in such activities without discrimination. In terms of enforcement, the Department of Justice has made accessibility of cultural and recreation facilities a priority.[71] But the larger project envisioned by Article 30, including enabling persons with disabilities to develop and utilize creative and artistic potential, establishing support and recognition of specific cultural and linguistic identities, and encouraging mainstreaming of sporting opportunities, is largely left to private actors and advocacy organizations.[72] Accordingly, a gap exists between U.S. law and CRPD protection, albeit one that could be filled with aggressive implementation and/or additional Congressional action.
Article 31 – Statistics and Data Collection
On its face, United States law seems harmonious with that of the CRPD.
Both sets of legal directives, however, face challenges in their respective effective implementation.
Article 32 – International Cooperation
As made abundantly clear in a September 2003 report by the National Council on Disability, the United States has been remiss both in providing technical assistance and disability-inclusive development aid.[73] The extent of State Department technical assistance is itself unclear, as is the accuracy of the disability-related content in the annual human rights reports. More trenchantly, USAID funded development practices cannot be assured of being in sync with the clear mandate for disability-inclusive development practices contained in the CRPD, although efforts have been undertaken. In addition, USAID’s policy recommends that foreign USAID missions engage with disability representative organizations in their host countries without providing a framework for those consultations. Finally, the policy does not require USAID foreign missions to consult with disability organizations in order to develop and implement programs.[74]
Given the progressive experience of the United States in developing disability law and policy, it has an opportunity to provide global leadership and guidance (and also cultivate goodwill) by providing greater technical assistance, making development aid disability-inclusive, and mainstreaming disability policies through its own federal agencies, including the Department of State and USAID.
Articles 33-40 (Implementation and Monitoring)
At least in academic quarters, the various enforcement apparatus of the federal statutes discussed above has been criticized as insufficient. The private enforcement provisions of the ADA have been undermined by the Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources,[75] a case that dramatically changed the ways that plaintiffs could recover attorneys’ fees in civil rights cases. Rather than qualifying as “prevailing parties” by showing that their lawsuit was a catalyst for voluntary change by the Defendant (the previously accepted “catalyst theory”), the Court held that plaintiffs must achieve a “material alteration of the legal relationship of the parties,” such as a favorable judgment on the merits or consent decree.[76]
The public enforcement response has also been criticized as insufficiently responding to statutory violations and creating deterrence.[77] In particular, there has been an underutilization of the class action device and a lack of aggressive use of disparate impact doctrine, particularly in Title I cases.[78] This is despite the fact that public enforcement authorities, including the DOJ and EEOC, have brought such cases in other civil rights contexts. For example, the EEOC moved aggressively – and successfully – after the initial passage of Title VII to eliminate racial discrimination amongst private employers.[79] The EEOC also initially concentrated their efforts on establishing that Title VII prohibited not only purposeful discrimination but also practices with a discriminatory impact.[80] In contrast, despite the fact that the Equal Employment Opportunity Commission promulgated regulations explicitly stating that disparate impact is covered under Title I of the ADA, neither the EEOC nor the DOJ have taken steps to develop the case law in this area.
These criticisms have also been applied to other disability rights laws. Under the Help America Vote Act, despite the fact that the sole enforcement power is with the Department of Justice, they have only brought two cases relating to the disability provisions of HAVA,[81] despite evidence of noncompliance.[82] Similarly, the enforcement of the Fair Housing Act’s disability provisions has been criticized.[83]
As set forth throughout this paper, enforcement of existing laws is a key part of implementation. Through improving its enforcement, the U.S. disability legal and policy scheme, while setting forth sweeping antidiscrimination mandates coupled with reasonable accommodation obligations, can come closer to the broad protection envisioned by the CRPD. It is also important to note that if the U.S. was among the first twenty States Parties to ratify the CRPD, it could exert influence on the appointment of experts during the Conference of States Parties. As the analysis below will demonstrate, there are a variety of sources of expertise the U.S. could tap into for this purpose.
The implementation scheme set forth in Articles 33-40 envisions that State Parties shall designate one or more focal points within government for matters relating to the implementation of the Convention (Article 33), as well as submit reports on treaty compliance (Article 35). These precise bodies do not currently exist within the United States government, but it is worthwhile to evaluate which agencies within the current structure have disability-related responsibilities, including an implementation and enforcement role.
The following agencies have a role in implementing and enforcing disability law and policy:
Within the Department of Justice’s Civil Rights Division, there is a Disability Rights Section. This is where the bulk of the enforcement power and expertise in non-employment matters resides. The Section’s responsibilities under the ADA include litigation under Titles II and III; litigation against public employers under Title I; certification of state and local building codes for equivalency with the requirements of the ADA Standards for Accessible Design; provision of information on ADA rights and responsibilities to businesses and governments covered by the ADA, persons with disabilities, and the general public; and coordination of public outreach activities with other federal agencies with enforcement responsibilities under the ADA; investigation of complaints within certain subject matter areas under Title II including, for example, law enforcement, public safety, courts, and correctional institutions; coordination of the administrative enforcement of Title II by the Department of Justice and seven other designated agencies; and issuance of regulations necessary to implement Title II and Title III of the ADA, including the ADA Standards for Accessible Design. The Section also has responsibility for enforcing the Help America Vote Act’s disability-related provisions. The Section also coordinates and ensures consistent and effective enforcement of Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally assisted and federally conducted programs and activities.
The Housing and Civil Enforcement Section, also within the Civil Rights Division of the Department of Justice, oversees enforcement of the Fair Housing Amendments Act.
The Equal Employment Opportunity Commission is responsible for promulgating regulations to implement Title I of the ADA, and they are also responsible for enforcing the ADA’s employment provisions.
Within the Department of Labor, the Office of Disability Employment Policy (ODEP) was authorized by Congress in the Department of Labor's FY 2001 appropriation. ODEP is a sub-cabinet level policy agency in the Department of Labor. The stated mission of the ODEP is to provide “national leadership on disability employment policy by developing and influencing the use of evidence-based disability employment policies and practices, building collaborative partnerships, and delivering authoritative and credible data on employment of people with disabilities.”
The Department of Labor is also obligated to help implement ADA Title II and Section 504 of the Rehabilitation Act (including fielding complaints) in areas relating to labor and the work force.
The Department of Transportation is responsible for promulgating regulations pursuant to the transportation provisions of ADA Title II and III.[84] The DOT is also required also obligated to help implement ADA Title II and Section 504 of the Rehabilitation Act (including fielding complaints) in areas relating to transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing.[85]
The United States Access Board is a federal agency devoted to accessible design. The Board develops and maintains design criteria for the built environment, transit vehicles, telecommunications equipment, and for electronic and information technology. It also provides technical assistance and training on these requirements and on accessible design and continues to enforce accessibility standards that cover federally funded facilities. The Access Board is tasked with developing standards for electronic accessibility under Section 508 and physical accessibility under ADA Title III (the ADAAG guidelines), amongst others.
The Department of Education is responsible for promulgating regulations and enforcing parts of Section 504 of the Rehabilitation Act.[86] It is also obligated to help implement ADA Title II (including fielding complaints) in areas relating to the operation of elementary and secondary education systems and institutions, institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and libraries.[87]
The Department of Agriculture is required to help implement ADA Title II and Section 504 of the Rehabilitation Act (including fielding complaints) in areas relating to farming and the raising of livestock, including extension services.[88]
The Department of Health and Human Services is required to help implement ADA Title II and Section 504 of the Rehabilitation Act (including fielding complaints) in areas relating to the provision of health care and social services, including schools of medicine, dentistry, nursing, and other health-related schools, the operation of health care and social service providers and institutions, including "grass-roots" and community services organizations and programs, and preschool and daycare programs.[89]
The Department of Housing and Urban Development’s responsibilities include implementing and enforcing the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Architectural Barriers Act of 1968. HUD is also required to help implement ADA Title II (including fielding complaints) in areas relating to state and local public housing, and housing assistance and referral.[90]
The Department of the Interior is required to help implement ADA Title II and Section 504 of the Rehabilitation Act (including fielding complaints) in areas relating to lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums.[91]
Finally, although the monitoring and implementation provisions of the CRPD and its Optional Protocol are the product of a different legal regime, it bears noting that several provisions go beyond what is usually conceived in U.S. disability law. The CRPD monitoring body may, for example, elicit the expertise and input of NGOs[92] and UN specialized agencies and organs,[93] conduct proactive inquiries,[94] and conduct Conferences of States Parties to discuss broader implementation strategies.[95] The National Council on Disability currently engages in several of these activities, although not in an adjudicatory capacity.
Conclusion
Overall, U.S. disability law and policy can be viewed as harmonious with the CRPD. This is not coincidental, as significant parts of the CRPD drew inspiration from the ADA and other U.S. disability statutes. But gaps exist within both specific legal areas and in their implementation. This is not surprising because, as set forth herein, the CRPD takes a more holistic approach to the inclusion of people with disabilities. Like other human rights treaties, the CRPD sets forth a full spectrum of social, cultural, and economic measures.[96] In this way, the CRPD provides a useful metric for self-examination, and can spur discussions of more effective ways to use existing legal and policy strategies as well as how to formulate new ones.
Although a discussion of the benefits of signing and ratifying the CRPD lies outside the scope of this paper, it bears noting that disability rights advocates assert that formal assumption of the obligations contained in the Convention would establish a clearer mandate for increasing the legal and social protection of people with disabilities, and also ensure more effective monitoring of these mandates. Moreover, if the U.S. was among the first twenty States Parties to ratify, it could exert influence on the appointment of experts during the initial Conference of States Parties.
The gaps between United States law and the CRPD are not insurmountable, and should not stand as an obstacle to U.S. consideration of signing and ratifying this historic Convention. Most gaps can be closed through more aggressive implementation and enforcement of existing laws, combined, in some areas, with additional funding and/or legislative action by Congress. Additional federal measures supporting actions already in place by some states would also move the overall U.S. federal system closer to that envisioned by the CRPD.
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Appendix
This Appendix provides the text of each article (or set of articles) in the CRPD followed by a discussion of the relevant United States law(s) on the topic.
Preamble, Articles 1, 3, & 4 of CRPD and Description of Corresponding United States Law
Preamble
The States Parties to the present Convention,
(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,
(b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,
(c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,
(d) Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
(e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others,
(f) Recognizing the importance of the principles and policy guidelines contained in the World Programme of Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development,
(h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person,
(i) Recognizing further the diversity of persons with disabilities,
(j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support,
(k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world,
(l) Recognizing the importance of international cooperation for improving the living conditions of persons with disabilities in every country, particularly in developing countries,
(m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty,
(n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,
(o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them,
(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,
(q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
(r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child,
(s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities,
(t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recognizing the critical need to address the negative impact of poverty on persons with disabilities,
(u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles contained in the Charter of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation,
(v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,
(w) Realizing that the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights,
(x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities,
(y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries,
Have agreed as follows:
Article 1-- Purpose
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
Article 3 – General principles
The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 4 – General obligations
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;
(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;
(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights.
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.
4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent.
5. The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.
Coverage of United States Law
The Preamble and Articles 1, 3, and 4 set forth the major reasons for the CRPD’s adoption, as well as its goals. Below, we set forth the major sources of U.S. disability law, describing both their primary purpose and obligations that they impose. Both these laws and other sources of law (including constitutional and common law) that have some bearing on disability policy will be addressed more thoroughly infra in the specific Article sections where they are relevant.
Architectural Barriers Act of 1968
The Architectural Barriers Act,[97] passed in 1968, requires that new facilities built with federal funds be accessible to people with disabilities.
Rehabilitation Act of 1973
The stated purpose of the Rehabilitation Act of 1973,[98] was to “provide a statutory basis for the Rehabilitation Services Administration,” an agency charged with carrying out the provisions of the Act, and to authorize various rehabilitation programs. The original primary focus was vocational training and rehabilitation. Currently, the Rehabilitation prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors.
Individuals with Disabilities Education Act
The IDEA,[99] (formerly known as the Educational for All Handicapped Children Act of 1975), deals with the educational rights of individuals with disabilities. Specifically, Congress found that “there are more than eight million handicapped children in the United States today,” the educational needs of which were not being met. The Act’s purpose was to assure that children with disabilities have available to them a “free appropriate” public education which emphasizes special education and related services devoted to meet their unique needs.
Voting Statutes
The Voting Rights Act of 1965 (as amended in 1982)[100] provides that any voter who requires assistance to vote by reason of blindness or other disability may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union. In 1984, Congress passed the Voting Accessibility for the Elderly and Handicapped Act.[101] With this Act, Congress sought to “promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for Federal elections.” The Voting Accessibility Act provided that the political subdivisions of the state that are responsible for conducting elections must ensure that polling places for federal elections are accessible to voters with disabilities. In October of 2002, the Help America Vote Act,[102] was passed into law with the stated purpose of reforming the United States’ voting system. Among other things, this Act provides for accessible voting machines and a secret and independent ballot for voters with disabilities.
Air Carrier Access Act of 1986
The Air Carrier Access Act[103] prohibits discrimination by airline carriers against individuals with disabilities.
Fair Housing Amendments Act of 1988
In 1988, Congress introduced a series of amendments to the Civil Rights Act of 1968, including a prohibition on housing discrimination against people with disabilities. These amendments are known as the Fair Housing Amendments Act of 1988.[104] The stated purpose was to recognize and eliminate housing discrimination against people with disabilities. The Fair Housing Amendments Act makes it unlawful to discriminate in the sale or rental of housing, and the terms and conditions of such a sale or rental, on the basis of disability.
Americans with Disabilities Act
The ADA[105] is the most comprehensive U.S. legal and policy statement on the rights of persons with disabilities. The ADA is divided into three main parts, commonly referred to as “Titles.” Title I prohibits discrimination on the basis of disability in employment, Title II prohibits discrimination in the programs, services, and activities of public entities, and Title III prohibits discrimination in privately owned places of public accommodation.
In passing the ADA, Congress explicitly recognized that people with disabilities were a stigmatized and marginalized population that had a history of being discriminated against. More so than in other disability statutes, Congress was explicit as to what it was doing and why it was doing it. Congress found that:
(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
(8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.[106]
Congress stated its purpose as:
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.[107]
Article 2 of CRPD and Description of Corresponding United States Law
Article 2 – Definitions
For the purposes of the present Convention:
“Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication te |
