Yes, Diabetes is Probably a Disability; A Response to Ed Morrissey

So this morning we get news via Kevin Drum that the Obama administration is claiming some kind of victory in giving us the first Supreme Court justice who was confirmed with a disability, which everyone takes as a reference to Sonia Sotomayor’s diabetes.  This led Ed Morrissey over at Hot Air to wonder if diabetes counts as a disability.  And he doesn’t say this uncaringly, but with indeed sympathy toward people with diabetes because, as he discloses, his wife had Type I diabetes up until recently.  But he felt that it was ridiculous to treat it as a disability even when she had it, because as long as she took her medicine, she is fine.  At least that is how I read his argument.

As a lawyer, speaking about statutory construction, I would say, that under the Americans with Disabilities Act (ADA) diabetes is “almost certainly” a disability.  But to talk about it and the policy behind this, I have to get a little philosophical about the ADA.

You see in a very real way, the ADA is an upside down law.  And it is the upside down nature of the law that has led to a lot of confusion.

Let’s start with the paradigmatic example of wrongful discrimination: skin color.  Most normal people (with the recent exceptions of John Derbyshire and Marion Barry) recognize that it is wrong to judge a person by the color of one’s skin; that one should be judged by the content of one’s character, to riff off of Dr. King’s immortal phrase.  Now why is it wrong to judge people by the color of their skin?  Because, most sane people will say, there is no significant* difference between the races.  So it is considered wrong to discriminate based on color because it truly doesn’t matter; it’s irrelevant.

(I have often said that the only relevance of race is the existence of racism, and nothing I am saying here is meant to contradict that or the implications of that.)

The American Bar Association Calls Out the LSAC for Its Disability Discrimination

Now, I should start by saying I have personal experience with all of this, which I will share some about in a moment.  But let me provide some background first.

The ABA sets standards for accreditation of law schools.  As of this moment, they require every single school to consider scores on the Law School Admission Test a.k.a. the LSAT.  The organization that administers it is the Law School Admissions Council, a.k.a. the LSAC.

And they are out and out bigots, at least toward people who have disabilities.  As I have shared at this blog, I have three learning disabilities.  I have faced severe discrimination because of those disabilities, so extreme that I ended up dropping out of high school.  It was what you would call hostile environment discrimination—that is making a person’s life hell until they walk away.  This was, of course, before the ADA existed.  Then a few years afterward, I decided to make a second go at obtaining an education.  I received accommodations on the GED exam, the SAT, the ACT and throughout my entire undergraduate education.  And indeed, I received the same accommodations throughout law school and on the bar exam.

In each case, the accommodations granted were identical and were tailored to my specific disabilities.  I will avoid the long discussion of each disability and the justification for the specific accommodation, but I will note that all of these institutions agreed that I should receive the same accommodations: double time, isolation, use of earplugs, and if the test had a significant written portion, access to a computer.  But when I made the same request to the LSAC they sent me back a letter denying the request for extra time.  That is right, they literally didn’t even address my full request and every effort to get them to even address it failed.  Later I verified that the letter they sent me was in fact a form letter—and a poorly-worded one at that—suggesting that as a practice they automatically rejected an entire class of requests for accommodations.

So I took them to court seeking a preliminary injunction against them forcing them to administer the test with accommodations.  After the test occurred, there would be a full trial on whether those accommodations were justified, and therefore whether they were required to score the exam and release those scores.

At the preliminary injunction hearing, their attorney made an outright bigoted argument, asserting that I was just faking these disabilities.  Anyone who actually deals with me would realize how ludicrous it was—it was almost as ridiculous as accusing a man in wheelchair with clearly underdeveloped legs of faking paralysis.  For instance, one of my three disabilities is dysgraphia.  That term describes a number of disorders, but in my case, it is an impairment in my fine motor skills that makes it so that it is very hard to write by hand; however, if you put me before a computer, I am pretty much normal.  It doesn’t affect my ability to form content, just to actually put it down on paper, by hand.  Because of this disability, my handwriting was frozen, developmentally speaking, at the eighth grade level.  And this idiot lawyer for the LSAC was claiming that I was faking that—indeed that I could fake that.

The Devil and Daniel Webster*

Imao once said that Alan Grayson (D-unce) “really is what would happen if you grabbed a random internet troll and made him a Congressman.”  And my gosh he has been living up to this.  His latest ad was so dishonest that he was challenged on MSNBC for making it.  Yes, MSNBC.  No, that is not a typo.  And it feels as weird to write it as I am sure you think it is to read it.  Hot Air has the video and links to why Grayson is being a lying shit.

The short version is this.  Once his opponent, Daniel Webster, said in a prayer meeting that the married men in attendance should pick out verses from the bible to contemplate.  He said “Don’t pick the ones that say, ‘She should submit to me.’”

Grayson then took that clip and cut out the part that says “Don’t pick the ones that say” and left in “She should submit to me.”  And based on that, called this man “Taliban Dan.”  Why do I suspect that Kos is coaching him?

I appreciate the media calling him out on this, but I will add that the correct thing to say is that Grayson is lying.  He is stating that the man said X, when in fact he said “not X.”  This would almost certainly be considered defamation in a court of law.

Of course this follows another ad that basically picked on the man for having a disability.  As Factcheck reports, Grayson had a previous ad claiming Webster was a draft dodger, and had the narrator claim that Webster didn’t love America like he did.  Gee, I thought Democrats didn’t like it when you questioned their patriotism?

Why Kennedy Probably Won’t Invalidate Proposition 8—A Response to James Taranto

James Taranto today said that he felt that Kennedy was principled enough that he would invalidate Proposition 8.  I have to disagree.

First, Kennedy is not nearly as principled as Taranto imagines.  Yes, he seems reasonably principled in defense of freedom of speech, but in terms of his interpretive methods, not so much.  He joined Scalia’s opinion in Heller v. District of Columbia, which was an intensely originalist decision, determining how the Second Amendment would have been understood at the time it was ratified.  And this was no mere joinder for convenience; in oral argument, he talked about how the founders would have considered life without guns unthinkable.  He put on at least an act of caring what the founders believed.

Then along came Kennedy v. Louisiana.  In that case they were called on to determine whether the term “cruel and unusual punishment” included executing a person for forcibly raping a child.  And with apologies for being this explicit, but the Defendant in that case, also coincidentally named Kennedy, had raped his eight year old daughter so violently that it ruptured the wall between her vagina and her anus and she will never have children.  Read the case and, to Justice Kennedy’s credit, he does nothing to excuse or diminish the cruelty of the act.  So if Justice Kennedy was a principled follower of original intent this would be a no brainer.  At the time of the founding, we executed horse-thieves.  Killing a defendant like this scumbag is nothing compared to that.

But in fact (Justice) Kennedy declared it would be cruel and unusual to kill (Defendant) Kennedy for his crimes.  That decision came only a day before the decision in Heller, leading some of my more sarcastic friends to argue that Heller made Kennedy v. Louisiana moot.

The Fallacy of Assuming Everyone Thinks Like You (or “Fisking Keith Olbermann”)

Yeah, several posts ago I wondered if it was necessary to fisk Olbermann, but I am compelled to, here.

But first let me tell you a story.  Now I have said that I support affirmative action in a limited sort of way, based on the present reality of racism and other forms of bigotry.  And I remember saying that once in a Constitutional History class back when I was an undergraduate and a man vehemently disagreed with me that racism was a real problem.  He said something like this:

I don’t think racism is so bad.  At my fraternity, a black guy wanted to join.  And one guy said we shouldn’t let him join because he was black.  So I stood up and said that the fact he was black didn’t matter.  And we voted to let him in.

That’s a paraphrase, of course.  And this is what I said in response.

Overlawyered’s Jihad Against Disability Accommodation Continues

Now anyone who goes to the site Overlawyered will see that there is one issue I clash with them about, all the time: their continual objection against any student receiving accomodations.  So they not only object to people suing for accommodations, but also people using things like financial pressure to obtain accommodations.  That’s right, they are so opposed, that even using financial weapons is verboten in their mind.

Now today they tell us that, horror of horrors “School districts spend thousands on litigation over special education.”

Yeah, and in the 1950’s and 60’s I am sure a lot of school districts spent thousands of dollars on school segregation issues, too.

But I should start by saying that this is personal to me.