Disability Wrongs, Disability Rights

On April 30, 2006Stephen Colbert addressed the White House Correspondents and President and Mrs. Bush. During this speech when referring to where truth lies, Colbert pointed to his stomach and stated, "right down here in the gut." Colbert went on to mention a "truthy" mainstay of American culture - the myth of self-sufficiency that exemplifies an ableist ideology by saying "I believe in pulling yourself up by your own bootstraps. I believe it is possible - I saw this guy do it once in Cirque de Soleil. It was magical."1 These quotes are examples of "truthiness", a neologism that Colbert introduced during his first television show and which was voted Merriam Webster's Word of the Year in 2006:

"Merriam-Webster's #1 Word of the Year for 2006:

Truthiness (noun)

1: "truth that comes from the gut, not books" (Stephen Colbert, Comedy Central's "The Colbert Report," October 2005)

2: "the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true" (American Dialect Society, January 2006)" 2

People who embrace "truthiness" according to Colbert embrace ideas and issues that feel true to them. They are gut thinkers and they put forth their ideas, beliefs and policies regardless of the facts by asserting the defense "that is how I see it. I have a right to my opinion and we will just have to agree to disagree." Gut thinkers rely on truthiness regardless of facts, critical analysis, and arguments that prove them wrong.3 Gut thinkers are a clear threat to our justice system and the policy-making process. Gut thinkers are a dangerous force in litigation and policy making.

As litigation consultants and attorneys we have an ethical obligation to avoid arguments and policies that are based on "truthiness", bias, stereotypes and misinformation.4 We do this in court proceedings through voir dire, the application of rules that demand arguments be based on legitimate facts and through judicial oversight. However, despite best efforts there are times when "truthiness", bias, misinformation and ideological arguments influence litigation, legislation and the regulatory process. The authors of this article caution litigation consultants and attorneys to be particularly aware of "truthiness" whenever matters involve concepts of disabilities, or its contrasting and more prevalent belief system of ableism. Ableism is an ideology that values able-bodied individuals and devalues persons with disabilities.

Ableism can be thought of as a lens through which people are viewed as inferior by virtue of their non-normative physical, emotional or cognitive status (deficits) instead of being valued for their capacities and humanity. Ableist ideology frames disability as a medical "problem" to be "treated" in an effort to find a "cure."5 In this discriminatory understanding of disability, people with disabilities are viewed as deficient and dependent because of their diagnoses and related impairments. Ableist attitudes reflect a fear of, an aversion to, or discrimination or prejudice against people with disabilities.6 Historically, not being "able-bodied" has often been perceived as an economic threat to the collective and contradicted the deeply held American values of autonomy and economic self-sufficiency.

Eugenics, Truthiness and Disability Policy in America

For many years preceding the industrial revolution, persons with disabilities were scorned, ostracized, institutionalized and not provided equal protection before the law. We need only study the words of Justice Oliver Wendell Holmes, writing the majority opinion for the Supreme Court of the United States (SCOTUS) in Buck v. Bell (274 U.S. 200, 1927) for an example of how eugenics, a popular application of Anglo-Saxon supremacy philosophy and pseudo-science, set a legal precedent allowing the involuntary sterilization of thousands of men and women in more than twenty-seven states.

Carrie Buck was the daughter of Emma Buck, a widowed mother of three. Emma Buck supported herself through prostitution and charity until her children were taken from her and she was institutionalized. Carrie went to live with the Dobbs family and progressed normally through five years of school. When Carrie was in the sixth grade, she was pulled from school so she could assume an increased load of household duties for the Dobbs and for neighbours to whom she was "loaned."7 At age 17, Carrie claimed she had been raped and became pregnant. Years later, she revealed her rapist to be Mr. and Mrs. Dobbs' nephew.8

Mr. Dobbs, the local peace officer who was responsible for institutionalizing Emma, wanted Carrie and "her shame" removed from his home. He filed commitment papers with local authorities claiming that Carrie was feebleminded, epileptic or both...