Document Type

Article

Publication Date

January 2011

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This article will appear in -- Cardozo L. Rev. -- (forthcoming).

Abstract

This article asks how disability rights ideas can be reconciled with—and might transform—the law of public assistance. The social model of disability forms the basis of most disability rights thinking. This model recognizes that impairments do not by themselves disable, but disability instead arises from a dynamic between a person’s physical and mental conditions and society’s environmental and attitudinal barriers: Paraplegia does not cause disability but for stairs, curbs, and human attitudes that limit accessibility. The social model focuses on changing the environment; its close corollary, the civil rights approach to disability, looks to anti-discrimination law to remove limits on opportunity created by society’s physical places and prevailing attitudes. The Americans with Disabilities Act embodies the civil rights approach, but it has not been successful in lifting people with disabilities out of poverty; many people with disabilities continue to need public welfare to live. This reality has led some writers to propose abandoning the emphasis on civil rights in disability law and returning to an emphasis on welfare and related interventions that typically entail a medical or charity orientation toward disability. This article strikes out in a different direction, arguing that the civil rights approach, when thoughtfully applied, supports continued disability-specific welfare programs, and further that it supports various improvements in the law of public welfare: more in-kind assistance programs; adjustment of disability benefits qualification standards to give more attention to the disabling effects of stigma; adoption of partial disability benefits programs and reduced means testing; changes in non-disability-related welfare; expanded universal benefits; and a Disabled Worker Tax Credit. This article compares the reforms envisioned by a nuanced application of the civil rights approach with ideas about welfare derived from principles of reciprocity, universal vulnerability, and international human rights.

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