Disability Discrimination - Book Report/Review Example

Martha Minnow (1990), in her book "Making All the Difference: inclusion, Exclusion and American Law" is faced with a dilemma. When people are treateddifferently, their difference is emphasized; this hinders their progress as they are made to feel inadequate. On the other hand, when people with various differences are treated as equal i.e. when their differences are ignored, their progress is likewise hindered; since their special needs are not addressed yet the truth is that differences exist in every human society the world over but when does treating people with disability differently emphasize their difference and stigmatize or hinder their progress and when does treating people with disability in the same way as the normal people become insensitive to their difference and likely to stigmatize or hinder them on that basis" Disability is hard to define as it has the two different conditions of the mind and body. In addition to this, there is no clear cut difference between ability and disability. According to Universities of Kansas Medical Centre, "Disability may be defined as a mental impairment, which substantially limits one or more major life activities. Impairments include any psychological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more systems of the body or any mental or psychological disorder such as mental impairment." Legally, there is no standard way of defining disability. However according to the American Justice system, it may be defined as "physical or mental disablement that, in the opinion of the court, results in a person lacking, wholly or partly the competence to manage his/her affairs." Clearly, people who are disabled are different from the remaining members of society who are considered normal. "When does treating people differently emphasize their difference and stigmatize or hinder them., and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis" (Minow, 1990:p ,20) From this defining phrase in her book, Minow is faced with a dilemma. Should different people; in this case the disabled, be treated in the same way as the normal individuals so as to ensure fairness among all members of the society even though this may lead to stigmatization based on emphasis of their differences or should the various disabilities in people be noted and addressed since ignoring them may only lead to poor development in the individuals due to these differences. For example a visually challenged individual should undergo special education as opposed to going through the normal education system. Lack of this would lead to dependence on other normal individuals for the rest of the individual's life. It is common knowledge that disabled in the society are discriminated against in nearly every society. According to Eisner, J. Discrimination is experienced on a day to day basis in the society. It mainly rotates around the norms and values that have been internalized by the society over a given period of time. Minnow looks at how the legal system internalizes and applies the presumptions of the society as it seeks to address the various concerns presented to it by the so called "the different" in the society. The society has classified different individuals based on their respective statuses. When a person who is marginalized goes through the legal system to seek legal redress, the court may either order special treatment of the individual's case or may view it as a normal case requiring no special treatment, just like that of any ordinary person. The two options, however, are not conclusive. When two or more unequal individuals are treated equally, the causes of the inequality are ignored. On the other hand, when you give preferential treatment to the one who has special needs, it may be understood that it's the difference that lead to the inequality in the first place. These two cases form the basis of the dilemma of difference. According to Minow, the dilemma is not natural, but is as a result of developed concepts of the society due to internalized popular beliefs and that it also arises from the legal system. She gives an example is which she considers a deaf female student who attends a public school in which the rest of the students are hearing. The particular student will need special attention in a normal classroom setting in as opposed to the rest of the students. She will therefore be considered "different." On the other hand if she is accorded this special attention, she is made to feel different. i.e. This special treatment leads to a general feeling of inequality in comparison to the other learners. On the other hand, if left to learn with the others students as though she not different, her disability will limit her ability to learn. Minow's argument is that, the difference occurs due to society's attempt to create special legal systems to deal with the individuals regarded as different and its attempt to accord every individual the same rights irrespective of her/ her differences. Due to a large number of disabilities experienced in the world, there is need for the review of the legal system by promotion of dialogue among the disabled people who are in this case perceived as "different" and the normal members of the society. (Harvard Law Review, 1991). Dennis W. (1991) argues that, although minnow has criticized the law on the way it embraces the societal assumptions on the sources and types of differences, she does not, however give an elaborate strategy of dealing with the challenges she is concerned about. For example, the disabled face various challenges, like the lack of necessary financial support to acquire equipments such as wheelchairs which are basic to their day to day existence and discrimination and rejection by the members of society. There are various categories of disabilities. Some people experience mental disability, others experience physical disability. Each disability is different. Minow has succeeded in discussing the concept of different disabilities. According to her dealing with the dilemmas, would depend on the concept of "difference". This she categorizes into three different views; the abnormal-persons approach, rights analysis approach and social-relations approach. "The Abnormal-persons approach" categorizes people who have no rationality in terms of their interpretation of the law in comparison to other societal members. Minnow proposes that there should be a separate legal system to deal with issues surrounding these individuals as they may not fit into the system governing 'normal' people. The second view is the: right-analysis" approaches which is of the view that the different attributes in different people may make them feel "different" (Harvard Law Review,1991) The Social-relations" approach is the third view of looking at individual's differences. This approach emphasizes that individuals become different if and only if they are compared to other people, implying that the difference comes from the society and not the individual. The concept, "Normal" is therefore relative as it is derived from the society. A disabled person is only disabled with respect to other people. Marks (1999), in his book "Disability: Controversial Debates and Psychological Perspectives" states that there are different categories of disabilities within given impairments. For example, two people may be visually impaired, but with different degrees of impairment: one totally impaired and the other partially impaired. The legal system should be able to correctly carter for the differences in the levels of disabilities while treating disabled individuals. When a mentally unstable man commits a serious offence like rape, his punishment should be "special" owing to his mental state. In this case Minows concept of special treatment is supported (Harvard Law Review, 1991). The social model of disability argues that even though different individuals have different impairments, the nature and extent of the disability these individuals experience are not as a result of their impairments, but rather as a result of the social perceptions and reactions towards their condition. For example, a person who is visually challenged therefore uses a cane to move. Even though the person is challenged, he/she may access the physical environment with the right kind of training received from the society. However if the person is not trained, he/she would experience much difficulty in her day to day relation with the environment. The social context theory insists that disability is attributed to not only the physical environment but also the social environment. The society has already judged the disabled person as "unable to perform" before any assessment is given on the persons condition. (Mark, 1991). It further insists that disability is not attributed to the individual. Therefore the extent to which the disability is experienced by the individual will be affected by the individual's experiences from the physical and social environment. Minnow, in her book, gives the example of a case in the Supreme Court City of Cleburne v Cleburne Living Centre, Inc, (PP. 102-120) in which the "social-relations" approach is applied. The case was about a group of mentally retarded individuals are denied a place to construct a mental home as a result of protests from the neighboring landlords and the residents of that neighborhood. In this case, the presiding judge fails to rule in favor of the mentally retarded group citing the protection of the city's ordinance. This is a classical example in which those people the society considers as different are given "special" treatment which ends up limiting their capacity. Disabled in the society falls in this group. The society has succeeded in marginalizing this group of people with their rights coming after the rights of those perceived as "normal". In the case of the labor market, the disabled are not given preference when it comes to the award of jobs even if the individual has all the qualifications. The unwritten rule is that the company or the employer sees the individual as a burden to its operation. These individuals are viewed as a burden to the society; hence there is an unstated assumption that they are inferior to other societal members. (Burchardt, 2004) There are problems that may come along with attempts to implement the relational approach (Harvard book review, 1991). In her book Minow gives an example of the Progressives - the reformers who were responsible for the introduction of different legal initiatives e.g. the juvenile courts in the United States in early 1920's. She notes that even though these people were well intentioned, due to societal progress, the very people they sought to protect have been harmed by the same systems which were meant to protect them. The problem arose on the difference between the understanding of what the reformers perceived as "help" and what the others considered help. More often than not, the programs created to help the disabled are designed and implemented by people who are normal. It is common knowledge that since these people are normal, they may not exactly know the unique experiences of the disabled. The programs which they may considered appropriate for the disabled according to their opinions may not necessarily be appropriate from the challenged individual's points of views. This represents a conflict of interest in which programs designed to help the disabled end up harming them. The solution to this involves the understanding that different groups of disabled people are different their lifestyles hence there is need in using different approaches. The place of dialogue in these circumstances cannot therefore be undermined. For the dialogue process to be successful it should be fully inclusive of all the stakeholders. The participation of all affected individuals in the process at all levels of planning helps in the reconstruction of exclusionary institutions. (Harvard Law Review, 1991) One of the ways is to consider all the factors that affects of the participants who are considered as "different," in this case the disabled, even though; these factors may not represent the interest of all the people who are disabled. Likewise the approach may not consider those who are so marginalized that they cannot voice their concerns. The second option suggested in the Harvard Law Review, is the option of having the considerations and organization of individual groups by an independent body. However this approach may be ineffective as it would require the independent body to classify different groups as "different." This has been realized through the creation of various bodies to deal with the problems of disability. For example the Disabled Living Foundation has addressed the problems of the disabled through the provision of disability aids, mobility products to help individuals move, It also offers guidance and counseling to affected persons, thereby enabling them cope with the problems they face in their daily lives. The World Association of the Disabled is also another forum which provides technical aid to the disabled as well as information to enable them deal with day to day problems. These groups, with appropriate consideration and support from the society, through dialogue, helps acquire a platform for self improvement and determinations thereby helping its members overcome their differences. Guaranteeing inclusiveness for the disabled in the society may be complex considering the wide range of interests and decisions to be made for this to happen. According to Disability Discrimination Act (2005), one of the ways of ensuring reform would be through litigation. In this process the individual who is marginalized or mistreated by other members of society, other individuals, a company or a group of people is encouraged to seek legal compensation on the abuse of his/her rights. This however, has met objections. Minnow in her book is not comfortable with what she terms "individualized solutions" as it only solves part of the problem. The other objection is that, the judiciary has no outright ability to attain solutions to problems involving "difference". Minnow recognizes that the relational approach is partly effective since it considers different points of views. The disabled, if represented as a group are likely to obtain substantial attention from the society. But there are some deep rooted problems which may not be solved only through dialogue. The disabled would also like to be treated as "normal". Treating them as special only leads to self-pity among themselves. Minow suggests that, obeying the golden rule which states that "Do unto others as you would expect them to do unto you" may not be effective. She says that to "treat me as you would want to be treated" may be translated as; you want to treat me as if you were someone in my position. (p. 263).This suggests that another individual may internalize another person's condition thereby treating the person with prejudice. However, according to Minnow, you may not blame the golden rule as there are no elaborate methods that may enable the observer "to see without perspective" It is therefore not the failure of the method but the failure of the social systems which has endowed the person with the so called "differences". "As long as the power structure that creates difference stands, even a conversation with the different person risks the misunderstanding that often accompanies the beneficent acts". ( Harvard Law Review, 1999). More often than not, individual members of the society and the society as a whole tries to treat disabled persons with sympathy on the basis of " doing unto someone what you expect to be done unto you" i.e. you have put yourself into the position of the disabled, thereby treating him/her with sympathy. This may make the person feel isolated, different and unique.However, Minnow is criticized of "abstract" theories of justice which has lost its force. The justice system can not guarantee the protection of all the groups. However the theories tend to distort and normalize the images of those not considered different. But it is only the relational approach which truly addresses the concerns of the person considered "different" Furthermore, even though dialogue may be effective in addressing these concepts, its implementation and structure may be tricky. "The legal analysis treats differences as a deviation from an unacknowledged norm" (Harvard Law Review, 1991) .For example there groups of people or individuals or systems which are treated as superior though not acknowledged. He gives the example of white men who are generally treated as superior to the black man but is not acknowledged as the norm; therefore the black man is considered the deviation from the nom. A classical example of this dilemma is illustrated in the bilingual education. This is in the policy making context. In early 1920s some societies in the United States had passed laws made it mandatory for all education programs to be carried out in English. They therefore considered the English language as superior compared to other languages, e.g. Spanish, which was widely used in America at that time. The disabled are constantly faced with this dilemma. They are generally regarded as a deviation from the norm though this is not acknowledged. Their place in the society is therefore treated as special. There should be dialogue among the disabled at individual level, the groups representing the rights of the disabled and the society as a whole so as to resolve this dilemma of difference. The legal system should also be expanded so as to expand its policy making ability thereby having improved policies on the way humans relate. Stuart Johnson (1990) argues that although Minow has succeeded in talking about the rights and differences in the society and the general societal perception on differences, she has nonetheless overemphasized inclusion as a way of compensating on exclusion. He gives the example, of the case in which Minnow consider the case of a deaf student learning with normal students (in this case students who hear). He argues that, although Minow is right in stating that it is not only the rights of the deaf student that is being violated, but the hearing students also have rights. But the remedy in which she suggests that "all students should learn sign language" is not correct. He notes that the idea may work in theoretical form but may not be applicable in a social context for all the participants. This is an example which directly relates the needs of the disabled to the needs of the individual members of the society. All the members of the society may not be expected to change their lifestyles just because of the rights of the disabled. The, society may therefore not adjust its social system because of the minority but it is the minority in this case the disabled that is expected to adapt to the needs of the majority. Likewise, as a solution, parallel social systems may be adopted. The special treatment of the people with disabilities may solve the problem e.g. the establishment of special schools. These are schools which carter for students with special education needs because of the various learning disabilities which may not allow them to fit in a normal school environment. He further agrees that minnow's approach is majorly a voice for the disadvantaged in the society, citing Minow's claims that there are more radical projects from different fields that voice the same concepts i.e. the concept of the majority in the society adapting to the needs of the minority or the marginalized. However, He notes that Minnow does not clarify the implementation of the social relations approach by the legal system in its attempt to solve the problem of difference in society. He further criticizes Minnow stating that her attempt at solving the problem of difference is "merely academic" and may not be applicable in a practical situation. Getting the general members of society to adapt to the needs of the disabled may not be possible. For example, making it mandatory for the general public to learn sign language or Braille so as to be able to communicate with those who are disabled may not be possible at the practical level. According to Sandra L. Nelson Minnow's three different approaches to study and support her theory on the current societal legal theories and arguments are of great importance to the legal system and therefore ought to be supported. She notes that within the abnormal-persons approach and the rights analysis approach, the unstated assumptions and perceptions are blatant on how they affects the ruling in the social system. However she notes that the social-relations approach is an alternative to traditional legal treatment of difference. This alternative approach emphasizes learning the perspective of another". She insists that Minow's theory is built on the societal views of the differences between individuals. "The society tends to look at what is different from the norm, rather than looking at what is the same." (Sandra 1990). The disabled are quite similar to their normal counterparts in several ways. For example, a person who is visually impaired is the same to all the other individuals except for their inability to see. However, the society tends to capitalize on the fact that the individual is unable to see rather than the several similarities between the individual and all other members of the society. In her review, she further notes that Minnows book was published in 1990, before two crucial bills which helped iron the issues between what is normal and what is different. These laws included: The American with Disabilities Act of 1990 (ADA) and the Individuals with Disabilities Education Act (IDEA). She also notes that from the historical perspective, the unstated assumptions have evolved in all the societies. Sandra also supports Minow's theory in which she highlights the importance of the legal system in dealing with the process of what is "different" In a two cases plessy v. Ferguson and Brown V. Board of Education of Topeca. In all these cases, the appellants are fighting for their rights as stated in the 14th amendment of the constitution which emphasize equal rights to every American Citizen irrespective of race. (Sandra 1991). In the case of Plessey v. Ferguson, The United States Supreme Court ruled that every citizen had equal rights. But the court noted that there were some who had "Separate but equal" rights. This concept was very controversial in that it allowed for racial segregation among groups noting that as long as there were equal facilities, there was no problem with segregation. Minnow notes that it is the perceptions of the people, and the unstated assumptions of the "difference" which had been internalized by the legal system, had contributed to the ruling. In the second case Brown v. Board of Education of Topeka the United States Supreme Court ruled differently. It ruled that the "separate but equal" principle could not be applied in the public education system. It ruled that the internalized unstated assumptions and perceptions had led to the inclusion of the clause in the 14th amendment of the constitution. It also stated that as a result of the Plessey ruling, there had been heightened civil rights lobby groups facing the federal government in attempt to change the legal system of the southern states. This forced the Supreme Court, under the leadership of Justice O'Connor, to come up with new doctrines concerning the equal protection clause of the Fourteenth Amendment. However, in my opinion the principle of "separate but equal" though may not be applicable in the public education system, is best suited for people with disability. The disabled surely cannot be treated as not being separate since the truth is they are separate. She notes tat the amendments of the Individuals with Disabilities Education Act (IDEA) in 1997, has improved the access to and relevance of the public education by the disabled children. She notes that it would be improved and the environment would be less restrictive to the disabled persons in terms of access to education. In 1995, Disability Discrimination Act (DDA) was passed in the United Kingdom so as to fight against the discrimination of the disabled. It was however reviewed in 2005. It addresses the rights of the disabled in areas of education, employment, access to good facilities and services, buying or renting land or property. The act, which mainly aims at promoting the concept of equality, act makes it unlawful for a public authority to discriminate against any disabled person in the course of her/his duty. Other acts include the Education for Persons with Special Educational Needs Act 2004, which seeks to asses a child's need for special education. It insists that this special education require an elaborate educational Education Plan. In Britain the special education department has devised a plan to provide the teachers of students with general learning disabilities with guidelines which seeks to help the student overcome the learning difficulties. It is noted that the implementation of the acts has in the past helped and in the future would help in the realization of the concept of inclusion. As the society progresses, and more integration takes place, it lead to change in the general perceptions of the masses about the concept of "difference". There should be mitigation of the oppressive nature of barriers that are imposed by the greater community and that hinder the realization of social integration and community inclusion. References. American Justice System (2008). Last retrieved from the World Wide Web on the 10th April, 2008 at melvil.chicousd.org/JusticeSystem.html Branding,J. and Curtis,J (2001). Disability Discrimination. New York. Willey and Sons. Burchardt, T. (2004). Capabilities and disability. New York. Old Willey press. Dennis, W .Stable(1991) Reviewed works of Martha Minow: Harvard Law Review. The Harvard Law Review Association (1999). Last retrieved from the World Wide Web on the 10th April, 2008 at http://www.jstor.org/stable/207223 Disability Discrimination Act 2005. Last retrieved from the World Wide Web on the 10th April, 2008 at www.opsi.gov.uk/Acts/acts2005/ukpga_20050013 Edwin M. Schur (1999). Making All the Difference: Inclusion, Exclusion, and American Law by Martha Minow. Contemporary Sociology, Vol. 20, No. 5 (Sep., 1991), pp. 752-753. Edwin M. Schur (1991). Constructing Difference. Contemporary Sociology, Vol. 20, No. 5, 752-75. Minow, M. (1990). Making All the Difference: inclusion, Exclusion and American Law. New York: Cornell University Press. Harvard Law Review Association (1999). Last retrieved from the World Wide Web on the 10th April, 2008 at http://www.jstor.org/stable/207223 Harvard Law Review Association (1999). Last retrieved from the World Wide Web on the 10th April, 2008 at http://www.jstor.org/stable/125423 Marks;D (1999) Disability: Controversial Debates and Psychological Perspectives. Last retrieved from the World Wide Web on the 10th April, 2008 at www.ingentaconnect.com/content/ oup/social/2003/00000033/00000006/art00837 Michael, S. (1998). The Social Understanding of Disability. London: Oxford University press. Stuart J. (1990). Washington Monthly. Last retrieved from the World Wide Web on the 10th April, 2008 at http://findarticles.com/p/articles/mi_m1316/is_n10_v22/ai_9073726) Swain.J Frech. S and Cameron,C (2003) Contrversial Issues in a Disablng Society. London: Oxford University Press. Read More