Should Prohibiting Discrimination Against Those with Learning Disabilities

Be Akin to Prohibiting the Making of Invidious Distinctions Based On Race?

By R. Tamara de Silva

August 22, 2011

“In approaching this problem, we cannot turn the clock back...”

Supreme Court Justice Earl Warren, 1954

Brown v. Board of Education

Over fifty-seven years ago, the Supreme Court voted unanimously to end

segregation in schools in what many consider to be the most important legal case of this

century. Brown v. Board of Education1 and the companion cases that followed, held that

“separate was not equal,” and state laws that required separation between the races in

schools, offended both Equal Protection and Due Process. Brown found that state laws

that drew invidious distinctions based upon race, prejudiced black students. After

Brown, any state law that provided for separation based upon race became illegal-forever

changing the complexion of the nation’s schools, workplaces and neighborhoods.

It is inarguable that Brown has achieved an anti-discriminatory purpose and

changed the nation-the degree to which it has succeeded merely as a desegregation

measure or a political one, is widely debated but to a degree academic. Some of the

smallest numerical minorities of non-white Americans, like Indian Americans are the

most over-represented in colleges and universities. Yet, it is also true that below the

college level, schools are almost as segregated now as they were fifty even years ago, but

there are a complex set of causes for this-admittedly among them is some degree of desire

to voluntarily segregate in housing locations.

347 U.S. 483 (1954)

Today race is not the consideration in need of anti-discriminatory policies in

institutions of higher learning that it was when Brown was decided. One of the

interesting consequences of Brown v. Board is that its scope has expanded to set the stage

for new civil rights statutes like the Americans with Disabilities Act (“ADA”), which seek

to protect in academia and in the workplace, people with disabilities. The ADA and its

companion acts like the Individuals with Disabilities Education Act, have to some extent

become the next generation of the civil rights statutes. The language of the ADA mimics

the language of the Civil Rights Act of 1964. However, it is not clear how well the

principles behind anti-discrimination in the context of race apply to the disabled, but

particularly unclear when applied to the learning disabled.

Race is a stereotype that leads to a preference that is not

per se rational-especially

because of its application to all persons belonging to the race. As Justice Oliver Wendell

Holmes said, “deep seated preferences cannot be argued about,” and “The mind of a

bigot is like the pupil of the eye. The more light you shine on it, the more it will

contract.”

It is never rational according to the principles behind Brown for an employer or

an admissions officer to discriminate on the basis of race. It is only rational to

discriminate based upon merit, because when race is factored out, a level playing field

exists that allows for a more precise judgment on merit. Employers and admissions

officers, who do not take race into consideration, will be better able to judge the strongest

and most capable candidates.

However, the anti-discriminatory principles behind Brown, may not translate into

rational preferences for an employer or an admissions officer in many instances of making

choices between disabled and non-disabled persons. If an employer discriminates solely

on race, this is not a rational decision but one made on stereotype-not likely to be

reasonable on its own.

Since almost any principle can be carried to its logical end, some illustrations may

be helpful. The preferences of an employer or an admission’s officer on the other hand

towards a non-disabled person are arguably rational against a disabled person. For

instance, an employer may not rationally want to hire a blind person to be a sewing

machine operator. An admissions officer will rationally want the applicant with the

strongest intellect (other factors being equal) and not someone who has enormous

difficulty reading or sitting through a lecture.

There is a crucial difference between civil rights statutes and those that prevent

discrimination against the disabled. The civil rights statutes prohibit irrational

discrimination, that is discrimination based solely on race, gender or national origin.

Section 504 of the Rehabilitation Act, Individuals with Disabilities Education Act

(“IDEA”), ADA and related statutes do not differentiate between

rational discrimination and
irrational discrimination. Nietzsche held great contempt for disabled persons as being

dangerous to healthy and strong ones-an irrational opinion. Yet what about a

manufacturer, who must take into account costs in hiring, and is faced with a choice

between hiring a blind sewing machine operator and an additional employee to work side

by side to assist, and one non-disabled person? The ADA prohibits rational, economic

decision.

The ADA came into being by defining a disability as an impairment that

substantially limits a major life activity-this impairment is measured against everyone else in society without the impairment.

Major life activity has been held to include, caring

for oneself, walking, seeing, breathing, working and learning. It has evolved to enlarge

the definition of disability to include people with learning disabilities (“LD”) which

measure some cognitive impairment measured against an individual’s own best self-what

they would be were they not to have the LD.

This article is concerned not with physical disabilities, or mental disabilities such

as Downs Syndrome or mental retardation but specifically learning disabilities and the

extension of anti-discriminatory principles that came into existence to prevent

discrimination based on race to people with LDs. This article does not dispute the

existence of LDs like dyslexia and mental retardation including forms of severe autism,

which are accepted even outside of the LD industry, by the outside scientific community as real.

The definition of a LD is genuinely inclusive:

The child does not achieve adequately for the child’s age or to meet

State-approved grade-level standards in one or more of the following

areas, when provided with learning experiences and instruction

appropriate for the child’s age or State-approved grade–level standards:

Oral expression.

Listening comprehension.

Written expression.

Basic reading skills.

Reading fluency skills.

Reading comprehension.

Mathematics calculation.

Mathematics problem solving.

The child does not make sufficient progress to meet age or State-approved

grade-level standards in one or more of the areas identified in 34 CFR

2 42 U.S.C. Sec. 12102(2)(A) (2000)

300.309(a)(1) when using a process based on the child’s response to

scientific, research-based intervention; or the child exhibits a pattern of

strengths and weaknesses in performance, achievement, or both, relative

to age, State-approved grade-level standards, or intellectual development,

that is determined by the group to be relevant to the identification of a

specific learning disability, using appropriate assessments, consistent with

34 CFR 300.304 and 300.305; and the group determines that its findings

under 34 CFR 300.309(a)(1) and (2) are not primarily the result of:

A visual, hearing, or motor disability;

Mental retardation;

Emotional disturbance;

Cultural factors;

Environmental or economic disadvantage; or

Limited English proficiency.”3

The definition of LD, some would argue, eradicates what was once thought to

account for the difficulty of students to learn as well as others-natural intelligence,

aptitude or that someone can be better at math than reading or vice versa. Tests like IQ

tests are sometimes administered and if a child scores higher in an IQ test and relatively

poorer in a math test or reading test-this is considered evidence supporting the diagnosis

of LD. LD proponents imply that were it not for the occurrence of LD, children and

adults would be as smart as they are supposed to be (their idealized selves) and perhaps

smarter than other children and adults without LDs.

Some within the LD industry supported by nothing other than rank speculation,

insist that historical figures like Einstein, Charles Darwin, Beethoven, Van Gogh and

Churchill had some form of LD. But by the amorphous catch-all definition of LD-who

living or dead, would not?

By law, LDs can be diagnosed by a child’s parents and one teacher-there is no

medical or scientific testing requirement to prove its existence. LDs also encompass ADD

3 http://idea.ed.gov/explore/view/p/,root,dynamic,TopicalBrief,23,

and ADHD. Predictably, this has led to skepticism and what critics point out is a specific

lack of scientific rigor in this field.

There are other problems with the application of the ADA and related statutes

arising from their definition, or lack thereof, of what constitutes a disability. Learning

disabilities have exploded in occurrence among school age children. Asian students are

least diagnosed with LD. All other ethnic groups appear to be over-represented. The

relatively high and recent statistical occurrence of learning disabilities (suggesting an overdiagnosis),

the fact that they disproportionately occur in the most affluent economic

groups (suggesting a diagnosis of apologetic and hopeful parents) and their lack of

scientific proof of its existence (in terms of objective double-blind tests, biological or

genetic markers)-has further fueled skepticism. Some skeptics suggest that standardized

testing and overly homogenic schooling leads to the diagnosis of LD because it is a fallacy

that all people learn or process information the same way.

Another problem with including LD/ADD/ADHD as a disability under the ADA

is that this diagnosis is rewarded in academia to the point of encouraging faking it. A

person with a LD can take six hours to take the SAT as opposed to three hours. In

colleges, an LD student can ask to take multiple choice tests home and ask for much more

time to complete everything. This may provide an incentive to claim an LD. Harvard’s

graduating class in 2011 consisted of 2,058 students that were picked out of a field of wellqualified

22,955 applicants.

4 Having three extra hours to take the SAT could be a

competitive advantage.

LD is somewhat akin to the diagnosis of an epidemic in search of a disease.

Nothing in this article is meant to cast aspersion on the existence of legitimate learning

4 http://www.thecrimson.com/article/2007/4/2/class-of-2011-admits-beat-lowest/

disabilities like dyslexia, which are real conditions. Unfortunately, the definition and

diagnosis of LD is democratic and general enough to include anyone-it is there for the

taking. There are a number of medical doctors that dispute the existence of learning

disabilities completely, comparing it to a for-profit hoax because of the lack of scientific

evidence and what they term is the massive for-profit industry that has mushroomed

because of it.5

In 2008, President George W. Bush, signed the Americans with Disabilities Act

Amendments Act of 2008 ("ADA Amendments Act") which became law in 2009. This

act broadened the definition of disability to include “individuals to the maximum extent

permitted by the terms of the ADA and generally shall not require extensive analysis.”

Wearing contact lenses or glasses, however, is not alone to be considered a physical

impairment casting one with a disability under the ADA.

6 Also, “reading and bending”

were added to the ADA’s original definition of “major life activities,”-the list now includes

anything that impairs one’s ability in, “caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working”-list is not

apparently meant to be limited to these enumerated activities and may include others.

This presents a lessening of the protections afforded under the ADA to people

with more legitimate disabilities, who need accommodations entering buildings, parking,

require service animals, etc. throughout their entire lives. Using the principles behind

Brown and its companion cases that made discrimination based upon race unlawful to

5 The Learning Disability Myth in America, Mcknight, R. Thomas, Journal of Education,

v164 n4, p351-59; and www.net4truthusa.com/PDF/Page57/DrStrydom-MythofADD.pdf; www.jstor.org/pss/40435967

6 http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm

extend to discrimination against people with LD/ADD/ADHD is a cheapening of a

monumental case. An important principal carried to a seemingly silly conclusion.

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