Here is Wendy Davis’s ad making a pointed attack on Greg Abbott for seeking dismissal of cases brought by the disabled in court:
This is one of those tiresome situations where partisans on both sides oversimply complex legal issues into slogans that you can imagine being intoned by lumbering giants with sloping foreheads: “SHE INSULTING DA DISABLED!!!” (that’s the partisan Republican giant) or “IF HE DISABLED HE SHOULD NOT FIGHT DA DISABLED!!!” (that’s the moron Democrat giant).
Prepare for a shock: The media does this, too, as you can see from the lede of this story:
Republican gubernatorial candidate Greg Abbott has vigorously fought disability suits against Texas as attorney general, despite being in a wheelchair himself and benefiting from the 1990 federal law that helps guarantee access for disabled people, a newspaper reported Sunday.
Let’s clear away some silliness on both sides before we address the issue in a rational fashion.
First: this is the same line that lefties use against black conservatives who oppose affirmative action: you may have benefited from it, so it’s hypocritical for you to oppose it! Even if Abbott opposed the ADA (which he should, but does not), it would be OK for him to do so. Just because a law automatically confers benefits from you — benefits that you don’t think should exist — that does not obligate you to support the law.
On the other side, those of us who support Abbott should put aside the fauxtrage for a moment and concede: if it were the case (which it isn’t, as I will explain) that Abbott were actually showing insensitivity to the disabled, that would be a fair point for Davis to make.
As we will see, I don’t think Davis is making a fair point. But in order to reach that conclusion, you first have to show that Abbott is not being insensitive to the disabled. It’s not enough to just wave your arms and scream: look! she’s making fun of the cripple!
I did something I doubt anyone you read will do: a little bit of research into just one of the actual issues discussed in the ad. The ad mentions three supposed insensitive positions taken by Abbott, but only one directly relates to someone with a disability. Without this claim, there would not even be an arguable relationship between his disability and the position he has taken in cases. So this is the one I will concentrate on. Even though I am limiting the analysis to only one of three claims made in the ad, this is still going to be a long post.
The ad makes the following claim:
Abbott argued a woman whose leg was amputated was not disabled because she had an artificial limb.
What a monster, right? OK, now let’s soberly look at the facts.
Basically, a woman with a prosthetic leg was trying to get a position as a Food Service Manager at Texas Department of Criminal Justice (TDCJ). She claimed that she was more qualified than the other applicants, and was turned down only because of her missing leg. TDCJ responded that she wasn’t really the best qualified person, and the people who hired someone else didn’t even realize she was missing a leg.
First, some background. To be disabled under the ADA, one must experience “substantial impairment of a major life activity.” An issue arises when one uses medical help to correct, or mitigate the effects of, one’s potential disability. Namely, if someone uses mitigating measures (wears glasses for poor eyesight, for example, or wears a prosthetic leg in place of a missing leg), is one’s disability measured with or without these measures?
In other words, do we look at how well people get around with their prosthetic leg, or how well they would get around without it? In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court said the former is true: you look at how a person does with the aid of corrective or mitigating measures, when you decide whether that person has “substantial impairment of a major life activity.”
So, at least at the time the case was argued, the issue wasn’t: are you disabled if you are missing a leg? It was: if you are missing a leg, but get around pretty well with a prosthetic leg, then is your ability to walk substantially impaired even with the use of the prosthetic?
Abbott’s brief argued that the plaintiff walks fairly well, with only a slight limp. He argued that, in her deposition, the woman had said that she “gets around pretty well.” Abbott argued that many of the people who had interviewed her had not even noticed her limp, and not even a single one had recognized her as a disabled person. Abbott cited Fifth Circuit authority holding that someone with a “leg deformity” who walked with a slight limp was not substantially impaired for purposes of the ADA. He argued that this plaintiff was similarly situated.
My daughter played soccer with a girl who uses a prosthetic leg. She was awesome. She was, objectively, a better soccer player than my daughter (my daughter would probably agree) and could probably run faster than my daughter. However, you could tell that her ability to run was affected when she tried to run at top speeds. When she was really sprinting, you could notice the limp. I supposed I was say she was “disabled” if you asked me. If you asked me if she was “substantially impaired” I would say maybe so, but she still seems to do pretty well. I would add that I admire the girl a lot.
Ultimately, the Texas Supreme Court said that, viewed in the light most favorable to the plaintiff, the evidence showed that the plaintiff was “significantly restricted as to the manner in which she could walk compared to the manner in which the average person in the general population could walk.”
To me, this seems probably the right answer. But I don’t think Abbott’s position was ludicrous.
What’s more, I am pleased to see that he was willing to argue a legal position he agreed with, even though one might say it went against his “identity” as a disabled person. In other words, he rose above his disability to do his job in the manner he thought appropriate.
Ultimately, I think Abbott was just doing his job, and that Davis’s ad does not make a fair point.
And since it doesn’t, it does make me wonder: is Davis is trying to exploit possible voter discomfort with a disabled person running for governor?
I have to say, it would not surprise me.
UPDATE: The rule in Sutton was changed by Congress in 2009. That does not change what the law was, however, in 2004, when Abbott argued the case.
UPDATE x2: Double post. Dana put up something while I was composing this. Read her take here.