INDULGENT EMPLOYMENT
[1]Legal Developments:
Careers In The Arts For People With Disabilities
Carrie Griffin Basas[2]
July 2009
The 2009 Summit: Careers in the Arts for People with Disabilities is presented by the National Endowment for the Arts, the Social Security Administration, the U.S. Department of Labor, The U.S. Department of Health and Human Services, VSA arts and the John F. Kennedy Center for the Performing Arts.
Disclaimer: The views expressed in this paper are the views of the author and do not necessarily reflect the views or policies of the agencies and organizations listed above, nor is any representation made concerning the source, originality, accuracy, completeness or reliability of any statement, information, data, finding, interpretation, advice, opinion, or view presented.
Abstract
This article explores developments in the Americans with Disabilities Act and social security programs that have shaped the education and employment prospects of artists with disabilities. Success in the arts depends on reaching certain benchmarks of excellence and talent, and often people with disabilities are overlooked and underappreciated for this kind of selective employment. Moving from barriers in higher education to those in employment achievement, the article fills an unmet need in understanding obstacles to coveted, “elite” jobs by framing those barriers through the example of the arts.
Introduction
"They seem to be mocking my disability?" Paterson asked incredulously. "I would say that decidedly they are mocking my disability. And that apparently [anyone] who is blind or deaf or has an ambulatory disability or any kind of physical affect that gets to a leadership position in this country is going to be portrayed as if a bunch of third graders are still ridiculing them, on Saturday Night Live . . . There's a 37 percent unemployment rate in the disabled community—71 percent among the blind, 90 percent among the deaf—and yet these individuals performed by average higher in American institutions of education than their colleagues who are non-disabled. Meaning that we can educate these people but we couldn't find work for them."- New York Governor, David Paterson (February 13, 2009)[3]
Recent Saturday Night Live skits have featured the New York governor as bumbling and oblivious to the actions around him because of his blindness. His reaction to reporters captures the frustration experienced by many people with disabilities as they confront cultural images of disability. More disabling than the physical or mental impairments themselves are the side-effects accompanying those diminished social expectations.[4] The process of discrimination begins with the onset of the disability and pervades all aspects of education and employment. Compounding the problem of discrimination, high schools and post-secondary institutions continue to make minimal investments in disabled students, and upon graduation, those students face even more discrimination from potential employers.[5] Even when people with disabilities succeed, their accomplishments may go unrecognized or be treated as anomalous, particularly in the labor market.[6]
Perhaps, no sector of the workplace is more marked by these inequalities than the arts. The employment challenges faced by artists with disabilities are rooted in this notion of people with disabilities as recipients of the “therapeutic benefits” of the arts, rather than as valuable producers of it.[7] Many potential artists with disabilities are never given accommodations in school and may have their talents go unrecognized, even by themselves.[8] To explore these employment obstacles and improve outcomes for artists with disabilities, the National Endowment for the Arts and the Kennedy Center originally commissioned this policy paper. More than ten years ago, these organizations held the first national gathering of disabled artists, government policymakers, arts organizations, and other disability allies to discuss the educational and career barriers facing people with disabilities interested in entering the arts. In the ten years since the last National Forum on Careers in the Arts for People with Disabilities, much change has happened in these laws and yet many barriers remain familiar and unscathed.[9] In preparation for the July 2009 forum, the organizers requested an update on the status of art students and artists with disabilities.
Two sets of laws and policies affect the lives and careers of people with disabilities interested in working in the arts[10]— Americans with Disabilities Act (ADA) and social security laws. This article will move through the issues faced by artists with disabilities—from education to employment, and I suggest legal, policy, and cultural shifts that must happen before artists with disabilities are fully integrated into the working artists’ community nationally. In Part I, I provide background information about the ADA and social security laws' roles in the post-secondary education of disabled artists. Many of these obstacles implicate the ADA. In Part II, I suggest reforms in social security law. Part III explores strategies for encouraging the employment of artists with disabilities. In addressing these issues, I will also provide a theoretical lens for understanding why these legal and policy changes have been slow in coming and artists with disabilities have been marginalized and underappreciated as employees.
I. Legal Context: The Americans with Disabilities Act (ADA) and Social Security Laws
A. The ADA
The ADA and social security laws have shaped the experiences of people with disabilities at school and work. The ADA’s purpose was to increase employment opportunities for people with disabilities—across all sectors and creative opportunities.[11] Artists with disabilities have not seen this advancement however, and they are not alone. Many employees with disabilities realize that courts are not interpreting and applying the ADA in their favor. People with disabilities lose more than 90% of Title I employment cases.[12] Congress’ original vision of the ADA to create a level playing field for workers with disabilities, including artists, has not been realized. The courts have chipped away at Congress' intent as well as this promise of equality and accommodation in the workplace.[13] Nontraditional employees, such as artists, have even more difficult times affording and winning ADA litigation.[14]
In response to the courts’ misinterpretation of the ADA and the subsequent legal setbacks of those decisions, Congress passed the ADA Amendments Act (ADAA) in 2008. The ADAA overturned a string of cases that limited the definition of disability, and therefore, eroded the protection and coverage of people with disabilities. These cases had said that if a person with a disability could successfully mitigate her disability (e.g., wear strong glasses to correct a visual impairment, take heart medication for a coronary condition, use a hearing aid to counter hearing loss), she did not need to be accommodated because she no longer qualified as a person with a disability under the Act.[15] Under the Supreme Court's interpretation of the law, many people with disabilities were denied ADA protection, even though their working lives were limited by genuine impairments that had been anticipated as fitting the definition of disability originally crafted by Congress.[16] In effect, the case law created a situation where it was difficult for any plaintiff with a disabling condition to be recognized as having a disability. In ninety-percent of the cases, these plaintiffs had no opportunity to actually argue the merits of their cases and get accommodations to work successfully in the labor market.[17]
After some stops and starts, Congress was able to successfully pass the ADAA in September 2008; it became effective in January 2009. The newness of the act means that no case law exists, yet, but advocates and scholars are eager to see what the ADAA changes will do for people with disabilities and the unemployment rate. The statutory language makes it clear that mitigating measures are no longer to be considered by the courts to deny disability protection.[18]
These changes are very exciting for art students and artists with disabilities.[19] More students with disabilities are entering and graduating from colleges and universities across the United States than they were ten years ago.[20] We are seeing the first generation of students with disabilities who have had the protections of the ADA throughout most of their school lives and the early stages of their careers. A rights-based approach to disability identity is a cultural shift of the twentieth century, but students’ self-advocacy skills continue to be critical.[21] I will explore these issues later in this article.
The ADAA may have ramifications for other disability laws, too. The broader definition of disability envisioned in the Rehabilitation Act, Section 504, the federal predecessor to the original ADA, formed the basis for the ADAA’s definition of disability. Congress’ recent steps brought the ADA into alignment with its original vision. The ADA was based on the Rehabilitation Act, but now it may have a chance to influence how that act is interpreted; the progeny becomes the leader.[22] As a more progressive interpretation of the ADA is advanced in the courts, Section 504’s protections may be strengthened as well through legislative efforts or judicial decisions.
B. Social Security Laws
Social security laws have also greatly affected students and professionals with disabilities. Art students and artists with disabilities may rely on social security to make their way through formal art training and the irregular job market.[23] These supports for education, training, and living expenses have been the foundation of many disabled artists’ careers and make it possible for them to take on less traditional and predictable employment.
The social security system, however, has changed as well in the last ten years, but some conflicts have remained. Many people with disabilities are still expected by Social Security (SSA) to move off of benefits and enter the workforce after being on benefits briefly.[24] The goal is to have more people with disabilities enter, remain, or return to the workforce successfully, but unemployment and disability benefits participation rates are high.[25] Some critics have argued that an overarching goal of working may mean that someone ends up in a job that she does not like or must choose between sustaining wellness and making ends meet.[26] As I will discuss later in this article, the conundrum is that once benefits recipients start working, they may be thrown out of system entirely, even if their low level of income does not ensure financial sustainability.
The timing of this process is particularly important, as many artists try to balance having the supports and stability of social security while transitioning to more frequent, self-reliant employment. People with disabilities become acutely aware of the income limits imposed by SSA, as well the time-frames in which they can make modest advances in their plans for independence.[27] And this problem is one shared by many people with disabilities; about 900,000 new recipients joined the SSA benefits system in 2007, for example, and about eight million recipients were paid that year.[28] The numbers seem high, but award rates are not when compared to the number of applicants for disability benefits.[29]
C. Focus on Artists
The normal hurdles faced by people with disabilities are magnified for artists and art students with disabilities. Their employment situations can be unpredictable, unstable, and temporary. Jobs in the arts are competitive, and many government agencies may see these jobs as ancillary and secondary to other kinds of employment of people with disabilities could have that are predictable and rote.[30] Many artists with disabilities are channeled in traditional jobs that may not meet their career and personal expectations, nor comport with their skills and talents. By their schools, one-stops,[31] and vocational rehabilitation agencies, they may be counseled to choose “dependable” employment.[32]
“Dependable employment” usually constitutes jobs outside of the arts and this problem is exacerbated for people with disabilities because of society’s low expectations of them.[33] Communities lose the opportunity to have people with disabilities, who represent a minority perspective in society, share their self-expression and lived experiences. And these talents, when explored, can result in captivating works of art—from mixed ability ballet to “krip hop,” disability-inspired rap.[34] Other disability-focused groups, such as Sins Invalid, a Bay Area, California, troupe of performers, celebrates the sexuality and beauty of people with disabilities with its purpose being “an ‘unshamed claim’ [sic] to beauty in the face of invisibility.”[35]
Being funneled into less challenging, less meaningful work, can disproportionately affect people with disabilities and result in its own form of discrimination.[36] While all arts fields are difficult to enter, disabled or not, government programs and its actors should not be encouraged to treat nondisabled and disabled job candidates differently. The same warnings, the same encouragements, should be given; work should provide food for the table and sustenance for the soul.[37]
Compounding this problem is the need for artists with disabilities to have access to quality health care coverage and affordable housing. A “stable” job outside of the arts, that may be well below the individual’s talents and aspirations, can be the safest route under a system that pressures people with disabilities to get “up and off” social security.[38] They may also be encouraged to downplay ADA rights in the workplace because so many cases have been unsuccessful and no one wants to develop a reputation within an insular field that she is a litigation risk.
The law as it stands may not be the best tool of social change for artists and art students with disabilities, but it offers some potential. With policymakers, jurists, and legislators willing to draft, pass, and interpret disability rights legislation in ways that support people with disabilities in fulfilling their vocational dreams, the law becomes more powerful. With awareness about one’s rights and a willingness to engage in self-advocacy—and rally for one another after success has been achieved—disability rights laws begin to have the teeth that the original drafters of the ADA hoped for almost twenty years ago.
But laws alone will not create this fundamental shift. Advocacy must happen at the policy and attitudinal levels as well. Government agencies, such as the Department of Education, Social Security Administration, and EEOC can play a role in facilitating these transitions to work, without placing additional weights on artists with disabilities. This self-advocacy process begins in school and continues through all career stages.[39]
D. Legal Issues in Post-Secondary Arts Education
I will now explore the roles that the ADA and social security laws can have in transforming education and employment outcomes for disabled artists. When students with disabilities enter colleges or universities and express interest in the arts, they may face several obstacles that can be addressed through the law and institutional changes. The law can provide a defensive position for people with disabilities and remove barriers in the workplace. It more fundamentally articulates disabled students’ rights at the state and federal levels, but compliance with the letter and spirit of the law takes greater social shifts.[40] The primary challenges include making campuses more accessible, gaining access to accessible textbooks, and making internships and externships ADA-compliant. Students with disabilities may also experience difficulties in gaining or retaining social security benefits.
1. Classroom and Program Accessibility
In the last ten years, colleges, and universities have made great strides toward integrating students with disabilities in the classroom. Classroom barriers may exist where disabled students have different communication needs (e.g., sign language, closed captioning of videos, sound amplification), learning needs (e.g., note-takers, PowerPoint slides for visual learners, manipulable notes for people with learning disabilities), or assessment concerns (e.g., extra time for exams, alternative exam formats, quiet testing rooms, readers).[41] The rate of students with disabilities in undergraduate and graduate programs continues to grow to about ten percent of all students.[42] The issue of accommodations and access cannot be ignored.
In the individual process of obtaining accommodations for students, regional and national networks have developed. As disabled populations grow, so may awareness about the legal rights of students with disabilities. As students with disabilities advanced their educations, they are gaining experience with self-advocacy and they have started to organize student support groups, such as the National Disabled Students Union and the National Association of Law Students with Disabilities.[43] Educators and disability-service providers, in particular, have gathered together to provide resources and support. Many disability-related listservs (e.g., DSSHE, DS-HUM) exist for college administrators and scholars to exchange ideas about accommodations and to share accomplishments related to access.[44] While these communities of support have room for growth, they are taking the issues of accommodations and disability awareness to national sounding-boards. In doing so, they are drawing on the resourcefulness and experiences of other professionals.
Reasonable accommodations[45] shape the trajectories of disabled students.[46] One of the critical legal nuances for students with disabilities to understand is that of the “interactive process” of reasonable accommodations.[47] Art students, furthermore, will not usually receive education about disability rights in their normal coursework. Therefore, they may not realize under they are facing a situation of discrimination, how the laws work.
Under the ADA and the Rehabilitation Act—both statutes affecting accommodations in places of higher education—students need to engage in dialogues with their schools about what they need in the classroom and on campus. The arrived-upon solution may not be what was originally envisioned, but it should fit the needs of the student as closely as possible. Different schools will have different strengths—financial, personnel, legal, educational, and attitudinal—and these strengths can be harnessed to complement disabled students’ requests. Weaknesses, however, cannot be ignored and schools and students should be as aware of what they find challenging, as they are of what they do well.[48]
In the arts, students with disabilities generally experience barriers in the classroom when it comes to alternative media, assessment flexibility, and physical access. The particular obstacles of the studio or performing arts classroom may relate more acutely to the nature of the assignments than an observer would notice in a more traditional classroom—such as where art history is taught.[49] But these obstacles are surmountable and they provide richness to the experience of not only being educated, but providing education.[50]
The abstract painting professor, for example, may have to be creative in tactilely identifying different colors of paint to assist the blind artist in locating the desired tubes.[51] The music teacher can enter into a dialogue with the deaf and dyslexic student to compose a symphony that she enjoys and resonates with the listener.[52] The drama professor may have to reconsider his or her vision of what Ophelia looks like, much like he or she would have when the arts became more integrated along race and gender lines.[53] The modern dance instructor is called to work with all forms of the human body to choreograph the class’ final piece that will include and celebrate the presence of class members with prostheses, amputations, height differences, and movement disparities. The writing teacher learns from the student with bipolar disorder that periods of different emotion and energy can be channeled into poetry that speaks to a broad audience of readers who have their own challenges and differences to be celebrated.[54] The examples abound as teacher and student collaborate and enter into the kind of dialogue modeled in the reasonable accommodations process. If the process functions effectively, they both come to see disability as a vital component of the arts and arts education.
While no specific case law has addressed classroom access for art students with disabilities, they share some of the same challenges as other students with disabilities.[55] Perhaps, they exist in the background because of this perception of indulgence, as I will explore later in this piece. Case law and administrative agency guidance have recognized, however, numerous accommodations for students with disabilities in the classroom and residential life generally, including centrally-located classrooms, interpreters for students who are deaf or hard of hearing, Braille course materials, extended testing time, quiet testing rooms, accessible parking, and modified schedules.[56]
2. Access Denied
The problem is that students with disabilities generally do not have the resources to sue their schools when accommodations are denied. Arts students may be particularly disadvantaged because of the cost of education when compared to employment prospects and salaries in the arts.[57] Therefore, rather than choosing to sue over access problems in higher education, the students may live with the discrimination.
Legal services are expensive; even in small cities, decent attorneys may charge $250/hour or more.[58] Legal aid societies are overburdened and have financial cutoff constraints. Protection and advocacy groups, designed to support the self-determination of individuals with disabilities, could also use additional resources and increased public awareness about their presence. [59]
The largest cost of litigation can be time. Alternative dispute resolution, such as mediation, is the path suggested by the U.S. Department of Justice’s Disability Rights Section because it can often reach a resolution before a court case can. Other government agencies involved in disability access, such as the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Housing and Urban Development, also tend to use alternative dispute resolution where feasible.[60] ADR is a valuable resource, but it has its limitations and may not be appropriate for every situation.[61]
Students are often disappointed to find out that even if they file discrimination complaints with state or federal agencies, those agencies will advocate for general policy changes and compliance rather than the students’ individual interests. These positions may not reach the full extent of students’ particular needs. The agencies, in other words, represent the government’s larger policy interests and do not serve as attorneys for the students.[62] While agencies warn complainants about their interests, students, especially in the arts, may still not be able to afford separate counsel or realize the value of it.
Accommodations requests can become games of attrition as students and parents get involved in advocating for access, and schools resist. Schools may respond negatively out of fear, misunderstanding, or financial constraints. In the unconventional arts classroom, the appropriate accommodation is not always clear nor agreed upon. Documenting the ongoing need for accommodations can be expensive for students, particularly when it comes to learning and psychiatric disabilities.[63] And when barriers arise because of communication or physical access needs, students may have fallen so behind in their coursework that remaining in school no longer remains feasible. [64] Students with disabilities are less likely to graduate from college than non-disabled students—by a rate of one-half. [65] No specific data on art students was available.
For disabled art students, the most significant legal hurdle may be combined with a social one—overcoming the social perception of people with disabilities as recipients of the arts, rather than as creators of it. This perception can infiltrate the reasoning of fact-finders in ADA cases. There is very little case law relating to the employment and education of artists with disabilities. The largest body of cases deals with theatre accessibility. Once again, these cases concentrate on disabled patrons.[66] Embedded in this case law is the notion that when it comes to the arts, people with disabilities are more likely to be “special guests” of the arts than performers. Even the movie theatre accessibility cases, brought to public attention in the last ten years, have been challenged in the courts; simple compliance with line-of-sight requirements is in flux. [67] If artists with disabilities are not granted equal access to see mainstream movies in their communities, then much progress needs to be made before they are seen in the mainstream as instrumental to the flourishing of the arts.
3. Accessible Textbooks
The second hurdle for disabled students is access to textbooks in alternative formats.[68] Art students with disabilities have the same needs for books as other students and may need a wide range of materials in accessible formats. Colleges, universities, and publishers, however, have expressed some resistance to making traditionally produced (i.e., hard copy, book form) textbooks accessible to students with disabilities. For colleges and universities, the perceived burden may be administrative and connected to whether they have enough staff dedicated to getting permissions from publishers and scanning textbooks.
For publishers, the resistance has been based primarily on concerns about intellectual property law and the control of distribution. When disabled students need textbooks in alternative formats—such as in electronic form or scanned—publishers have dragged their heels to responding to such requests.[69] They fear having accessible copies of textbooks in the ether and do not necessarily want to invite schools to scan, reassemble, and electronically distribute their proprietary materials. The publishers sense that they are losing control of the textbooks’ distribution and will therefore lose profits. Authors chime in with concerns about royalties and meanwhile, students with disabilities wait for the accessible versions of their textbooks and the final exam or project approaches.
In arts classrooms, students with disabilities may be waiting for books that are instructional or doctrinal. Missing either type of resource puts arts students with disabilities at a disadvantage. The classic arts education involves taking studio and workshop courses, as well as incorporating classwork in theoretical and historical perspectives.[70] Without accessible learning materials, the disabled arts student may miss the fundamentals of a “how to” class or not be able to read about an entire arts movement and period. Socially and academically, the student with a disability who cannot access the learning materials becomes more isolated in the classroom.
This opposition from publishers has put disability service providers at higher education institutions in untenable situations. They must respond to student requests for accessible materials because such requests were envisioned and protected under the ADA, but they do not want to break federal copyright laws by distributing unauthorized versions of the textbook.[71]
Significant legal developments have happened piecemeal; several states have adopted textbook accessibility laws.[72] The statutes take different forms, but at the heart of each is the principle of equal access in education. Model states, such as Kentucky and California, have postsecondary accessible textbook laws that clarify how access can be achieved and establish a “timely manner” for providing students with materials.[73] While a federal act of this kind, the Instructional Materials Accessibility Act, was introduced in 2002, Congress did not enact it at the time.[74]
A groundswell toward universal design in education emerged over the next six years, however.[75] Responding to increased public demand for improved services and supports for students with disabilities that would allow them to remain in college and thrive, Congress passed the Higher Education Opportunity Act of 2008 (HEOA), reauthorizing the 1962 Higher Education Act.[76] HEOA includes provisions aimed at students with disabilities, including recruiting and retaining students with disabilities, improving education materials, and expanding financial and access support to students and their families.[77] HEOA functions much like most federal statutes in its focus on generating regulations and rules for schools to follow and the Department of Education to monitor and enforce. It, however, also provides for data collection so that the Department and colleges and universities can monitor their performance when it comes to serving students with disabilities and from other minority groups.[78] Part of HEOA involves creating a competitive grants program to assist schools and students with disabilities in making course materials more accessible. The first step is establishing a commission to investigate these accessible textbook issues.[79]
With more competitive financial aid and support for accommodations, art students with disabilities could thrive. Art educators, people with disabilities, and advocates will have to watch HEOA closely and ensure that it is properly funded and responsive to technological development.[80] So far, educational institutions are only required to make a good faith effort to comply with HEOA and there is an extended timeline for funding and implementing its various components.[81] Without funding, HEOA is a nod at access, but still leaves students with disabilities to engage in disputes with publishers and professors over access to course materials.
4. Internships and Externships
The home universities of students with disabilities have critical roles to play in facilitating the transition from the classroom to the workspace. Art students with disabilities need to have practical work experiences, just as all students do.[82] But these experiences are even more important for people with disabilities because they build gravely missing confidence among disabled students and demonstrate to potential employers that employees with disabilities can be exceptional hires.[83] In the arts, where employment is coveted and reserved for the “special few,” being “special” for disability-based reasons can be a fatal disadvantage.[84]
Moreover, these early experiences can translate into gainful employment—one of the most significant obstacles for people with disabilities. Employment researchers have shown that employers that hire one person with a disability have their attitudinal barriers toward disability challenged and altered.[85] They become more willing to hire other people with disabilities.
Schools should build bridges between art students and employers, even if those arrangements are originally envisioned as short-term internships or externships. Schools can facilitate this process by:
1. Documenting the kinds of accommodations provided by the school
2. Creating fact sheets or borrowing fact sheets about disability and reasonable accommodation from other reputable sources (e.g., Job Accommodation Network, Department of Justice-Disability Rights Section, Equal Employment Opportunity Commission) to distribute to employers
3. Customizing these fact sheets to provide ample examples of accommodations in the arts and representing different kinds of disabilities
4. Incorporating disability into larger diversity efforts and communicating that integration to employers
5. Enlisting local lawyers, law professors, or law students to provide ADA workshops to prospective employers and students
6. Developing databases of disabled alumni, disability-friendly mentors, and networking contacts for job-seekers with disabilities
7. Hosting disability-friendly arts groups in the university’s performing arts and gallery spaces to highlight the importance of inclusion for the general public and employers in attendance
8. Offering to be informal advisers to employers taking their students for internships and thereby allaying employers’ fears about disability in the workplace
9. Encouraging and developing internship opportunities for all students, but focusing on the placement of art students with disabilities, in particular, because of historical trends of unemployment and underemployment
Employers will be most concerned about the costs and feasibility of reasonable accommodations for interns with disabilities.[86] These concerns in the arts may focus on whether or not interns with disabilities have artistic talent, technical skills, and employment flexibility. Employers may even question the necessity of these accommodations and hesitate because of concerns about how other employees or customers will react.[87] In performing arts fields, employers may be concerned about the perceived “fit” between the disabled artist and the company’s work and mission. Artists with disabilities do not always comport with mental models of the arts. As artist Pamela Kay Walker writes in Moving Over the Edge:
Polio did not destroy my Dream, but there were stereotypes that defined what a girl who had been paralyzed by polio had a right to dream, and they didn’t include acting or singing.
She goes on, like many artists with disabilities, to describe the tremendous pressure placed on her to get a “practical” college education.[88] Employers may perceive that more appropriate placements for disabled artists are in community groups and as “dabblers” or hobbyists.[89]
Legally speaking, students excel when they document and consistently ask for accommodations over the course of their educations and continue that trend into their first workplace. Rather than being discouraged from asking for accommodations and “scaring off” potential employers, art students with disabilities should be assisted in contacting the appropriate people or department at potential employers (usually, human resources or diversity), relaying what accommodations are envisioned, and beginning a dialogue about these accommodations.[90] In smaller organizations in the arts, these conversations will focus even more on establishing open communication in workplace relationships. Artists with disabilities will still confront potential employers’ inertia and sense that they may be hiring a more costly employee and getting “less” of an artist from the deal.
In practice, employers’ fears about the burdens and costs of accommodating artists with disabilities are largely unfounded.[91] In most cases, arts-related accommodations demand the same kind of flexibility and creativity that being an artist or running an artistic project does. For example, consider how Wry Crips, a disabled women’s theater group, accommodated disabled patrons with service dogs and those with allergies by seating them in different sections of the performance space.[92]
Most accommodations are low or no cost, and employers are not forced to give beyond their means.[93] They can always claim undue hardship because of financial or logistical factors, and not provide accommodations at all.[94] But in doing so, the arts may miss out on the poly-vocal, riveting expression of the barely audible voices of disabled artists.[95] The malleability and self-expression of the arts should be guiding principles in approaching reasonable accommodation. These are the arts’ strengths and these strengths when disability is not an issue can be its redemption when it is.
II. Social Security Laws
Social security laws play as important roles in the careers and daily lives of emerging artists with disabilities as the ADA. Social security benefits can become available to artists and art students with disabilities through two channels—Social Security Disability Income (SSDI) and Supplemental Security Income (SSI). SSI and SSDI are separate programs, but both are administered by SSA. SSDI is for people who have worked and paid into the FICA system through their taxes while employed; they have earned work credits toward benefits. Another way of thinking about it is that SSDI were employed previously, but became fully disabled, and are no longer able to work. They built a “safety net” of sorts, however limited, by their previous work. SSI, in contrast, is a needs-based program, not depending on work credits, and it covers people with disabilities who have been unable to work and do not have many resources. A person may receive SSI, SSDI, or both.
To qualify for either program, the person must have a disability as defined by the Social Security Act. Under the Act, a disability is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can which has lasted or can be expected to last for a continuous period of not less than twelve months.”[96]
To receive benefits, an applicant asserts to SSA that she cannot work in a “substantial gainful activity” and will not be able to work for at least a year. For full-time, working artists, this kind of approach might run contrary to their employment goals of locating and retaining employment. On the one hand, a person is trying to persuade the system that she cannot work so that she can receive benefits, but she may want to work and get off benefits. As one disabled artist joked in her memoirs, “Required Reading for Any One from the Social Security Administration Who Reads This Book, Especially My Caseworker . . .Writing a book does not eliminate my disability nor my eligibility for SSI or SSDI.”[97]
Artists with disabilities face three main barriers in social security—qualifying for SSI or SSDI, transitioning from benefits to work, and navigating the complex administrative process. Once they receive benefits, the biggest issue is being able to live on the amount provided.
A. Qualifications
Much like the main hurdle posed by the ADA, one of the barriers still present in social security law in 2009 is qualifying as a person with a disability. This process is neither speedy nor transparent. SSA maintains a list of conditions that are considered to be disabling and evaluates evidence for claimed disabilities not on the list, but the process can be slow. It is further complicated if a person is already working to some extent. Even if a student could use supplemental income because her disabilities limit how much she can work or what she can do, she is often not considered disabled if her earnings average more than $980/month (2009)—less than $12,000 a year.[98] SSA also considers assets in making determinations of disability.
Perhaps, most frustrating to artists and other creative individuals, SSA does not give complete deference to an individual’s desire to work in a particular field. First, SSA determines if an individual can work at all in her previous job and then it determines if she can perform other work. Factors considered include medical conditions, age, education, past work experience, and transferable skills.[99] While an artist may want to work in her field, SSA may direct her to another position because its counselors believe that the individual can have gainful employment of some kind—even outside the arts and after years of investment and training in the arts. This kind of advice is not limited to artists. Other people with disabilities interested in pursuing nontraditional careers may also face the same hurdles. The problem is just more pronounced when someone has developed her talents and must face a drastic career change.
B. Transition to Work
Second, artists with disabilities might turn to disability benefits (SSI, SSDI, or both) to make the transition from school to work. Because these programs have income caps, a person in transition needs to be keenly aware of the amount of allowable income before she gets herself in a situation where she puts her benefits at risk. The balance of work and benefits can be tricky to navigate while also dealing with the normal stresses of the transition itself.
Consider the nature of arts employment for disabled and nondisabled people alike. It is atypicality. A disabled artist can get a gig and receive a large check one month and then go months without receiving any income. These boons may not reflect what a disabled artist can sustain daily or weekly over the long haul and the complexities of arts employment can leave SSA caseworkers and their clients befuddled.[100]
Planning ahead is key to successful transitioning to work for artists receiving benefits, but as this paper discusses, such forethought is not always possible. The Plan to Achieve Self-Support (PASS) attempts to address the difficulties of making a transition, however. It is a work-incentive program that permits disabled people receiving benefits to set aside earned or unearned income or resources for a period of time and use them toward vocational goals (e.g., college or professional training, educational expenses, business start-up costs, and assistive technology).[101] PASS participants must be eligible under SSA’s financial rules to use the program. The initial PASS may be for a period of eighteen months; extensions can be granted when longer training or education is needed. In the past, PASS durations were typically around four years, but PASS extensions are possible now if the recipient is working toward her work goals, as approved by SSA.[102] PASS plans require individuals to be specific about their living needs, occupational goals, and financial strategies. The plans must increase the prospects of participants moving to eventual self-support through employment. SSA plays a critical role in monitoring and assessing progress toward these goals.[103]
One important development at SSA has been permitting individuals to “test” or try on work opportunities. In the arts, this kind of flexibility may permit emerging artists with disabilities to explore different fields, take on temporary employment with the prospect of future offers, and gain additional experience in their concentrations—all with minimal risks. A benefits recipient may work with SSA to develop a fixed period of time in which she would like to explore a career path and keep her benefits during that time.
Similarly, the system permits special exceptions for students with disabilities under the Student Earned Income Exclusion (SEIE).[104] Working students may continue to receive benefits and earn income while attending school and having experiences that will improve their chances of post-graduation employment. If a student is under twenty-two years old, for example, SSA will not count up to $1640 (2009) of gross earned income (wages) each month while the student is attending school and working; the maximum exclusion is $6,600 in 2009.[105]
But artists with disabilities will still return to conflicts with the structure of these programs. They assume a certain predictability to all kinds of employment. Short of attaining that elusive predictability in the arts, people with disabilities are encouraged to find day jobs. Because they may be dependent on the money coming from SSA, these students and artists may feel as if they cannot journey out on their own to take the most meaningful career paths. SSA, through its policies at the national level and its case-workers in the field, ends up holding the power to heavily influence a disabled person’s vocation by matching disabilities with abilities required for “safe” positions.[106]
C. Navigating SSA
Communication in this transition process becomes key and the many layers of administration inherent to federal agencies and state implementation can make navigating the system difficult. Beneficiaries can update their income statuses by calling or visiting their local SSA offices or their Area Work Incentive Coordinator (AWIC). AWICs assist people receiving benefits with navigating the system and figuring out work strategies, available incentives, and the scope of benefits. SSA’s formulae for calculating benefits checks are based on countable income definitions, but those formulae are complex and nuanced.[107] Recipients need this information and the advice of local offices and AWICs to decide when working makes financial sense. Even with input and analysis, artists with disabilities may be disadvantaged at being able to predict if one job will lead to another because the nature of their work is unpredictable at times. Clear communication and self-advocacy become valuable skills to have.
Benefits recipients also cite some complexities in navigating Ticket to Work, the Social Security program that allows them to return to work while maintaining medical benefits and other support for a period of time.[108] Overall, that program may have streamlined the process for transitioning from benefits to self-support. The program issues tickets to eligible beneficiaries who may use these tickets to get services from Employment Networks (ENs) they choose.[109] Services can include assistance with vocational rehabilitation, career development, and disability-related job supports.
Once it accepts the ticket from the beneficiary, an EN assists the individual in finding and retaining work. The foundation of this relationship is the Individual Work Plan, which is developed by the individual with a disability and her EN. Individuals may only work with one EN at a time, but they may change ENs at any time or screen ENs before assigning their tickets to one of them. Through participation in the program, an individual does not have to undergo a continuing disability review. This review is usually performed regularly to assess ongoing eligibility for benefits.[110] Having these resources in place helps people with disabilities, but ENs could use additional training on creative careers, including jobs in music, performance, and literature.
D. Improving Social Security
Artists and other people with disabilities on SSI and SSDI are not thriving financially. SSA has been highly scrutinized for under-funding the living needs of people with disabilities and providing little monitoring and few incentives for leaving the benefits system. Scholars have questioned whether or not it has placed a high enough priority on helping move recipients into meaningful, paid employment. [111] Critics point out that few people leave SSI and SSDI and make the full transition to work.[112]
Even with SSA benefits, many people with disabilities live below the poverty line. This situation may prevent people with flexible or sporadic cash flows from saving for the harder economic times. Artists could be particularly affected by these severe savings and income cutoffs because their incomes may fluctuate more than other workers’ and they may be searching for jobs that are grant-based or for a limited time. As applied to artists and non-artists alike, the numbers have not even kept adequate pace with cost-of-living figures. In 2009, the maximum monthly benefit for an individual was $674 and $1011 for a couple.[113] SSDI benefits can be higher, in contrast, because those benefits are calculated by taking into consideration payments into the Social Security System during times of employment.
Assuming that benefits recipients are able to begin to save some money, they are constrained to saving no more than $2,000 in countable assets ($3,000 for a couple), including savings accounts and most retirement accounts.[114] If artists, for example, would like to save some money to even out the periods of unemployment, they may be penalized for their planning and initiative. Moreover, these limits have not changed since 1989 and more remarkably, they adjusted only slightly during that time from the original figures set in the early 1970s. If these 1970s figures had been properly adjusted for contemporary costs of living, they would be more than $6,000 for individuals and $9,000 for couples.[115]
Standing alone, these amounts are too low for people with disabilities to live at the poverty line of $10,830 for individuals and $14,570 for couples (2009).[116] Reality is starker when we consider that many people with disabilities may have more expensive lives than nondisabled people.[117] These expenses can be compounded when viewed alongside the costs of an arts education and the diminished earning potential of artists compared to other professionals.[118] And still other artists with disabilities may depend on disability benefits to get basic health insurance that is not often readily available on their nontraditional career paths.
Some flexibility is entering the system. For example, low-resource individuals may be eligible for “Individual Development Accounts” (IDAs) through the Temporary Assistance to Needy Families (TANF) program.[119] IDAs allow individuals to save for education, first-time home purchases, or the building of businesses. SSA will not penalize IDA-holders who have these savings plans in place and therefore will exclude those resources from its usual assessment of resource limits.
An overview of social security’s remaining problems follows. These issues have related to overpayments (more than $4 billion in 2006),[120] case backlogs, waiting periods, system complexity, and interstate judgment inconsistencies.
Table 1- Concerns about Social Security
|Problem |Proposal |
|People with disabilities who are seeking SSDI must wait five months to|SSA could begin a streamlined process for people with these concerns |
|receive benefits after being approved for them. This issue is of |about SSDI and reduce the time to be more in line with the SSI |
|particular significance to people with terminal and progressing |timeframe. However, both programs need to have backlogs resolved by |
|illnesses. [121] In contrast, people seeking SSI benefits can begin |perhaps simplifying eligibility criteria and consolidating application|
|receiving them a month after their requests have been approved. (This|steps and personnel involvement. |
|situation is hopeful if the system-wide backlogs can be resolved.) | |
| |In 2006, SSA unveiled some improvements to the disability |
| |determination process, including a 20-day “quick disability |
| |determination” (QDD). [122] |
|The disability benefits appeals process may be more complicated than |Recently, SSA has been testing a new SSA appeals structure in the |
|necessary and may involve too many decision-makers. The application |Boston region.[124] It has simplified the appeals process to two |
|is considered anew at least three times, ensuring a range of input, |steps by creating the position of a federal reviewing official to |
|but frustrating the process of early findings and determinations.[123]|examine state agency determinations when a claimant requests it to do |
| |so. The new approach has not been implemented nationally, however, |
| |and it needs to be studied more to determine its effectiveness and |
| |equity. |
| | |
| |This process could be simplified even further if any appeals went |
| |directly to the federal circuit court. Federal courts could be given |
| |the power to dismiss cases promptly.[125] |
|Determinations between states can be inconsistent. New Hampshire, for |These state differences could be minimized with clearer, simpler |
|example, grants favorable decisions in 59% of its SSI initial decision|eligibility criteria and the streamlining of the number of actors in |
|cases, while West Virginia grants favorable decisions in only 27% of |the determination and appeals processes. |
|the cases.[126] | |
|Determinations by administrative law judges (ALJs) often depend on |The testimony of vocational experts should be compared to existing |
|vocational experts’ testimony. Their opinions can be technically |data on disability and employment. ALJs can be briefed on the latest |
|correct, yet not reflect the realities of living with disabilities and|research in disability and employment.[128] SSA should weigh the |
|returning to work. Disability can be a disadvantage at work, yet |disabled person’s work preferences and training. If a career in that |
|these experts often treat disabled people as being similarly situated |field, such as the arts, is not possible, allowances should be made |
|to nondisabled job candidates.[127] |for retraining in a field that will provide meaningful employment. |
|People with disabilities have not played central, consistent roles in |People with disabilities need to be more involved in SSA’s leadership,|
|social security policy, especially where SSA’s future is |as senior level managers and policymakers. Changes in policies should|
|concerned.[129] |be vetted before cross-disability, multicultural groups of people with|
| |disabilities. National disability nonprofits should be considered as |
| |resources—not barriers—in policy-making.[130] Once input has been |
| |solicited, it should be used to make policies that better serve the |
| |needs of the public. |
Overall, artists with disabilities need to be involved in the policy shifts that SSA makes. The ebb and flow of their employability and income levels may dictate a specialized approach to handling social security cases for artists. If the system expects artists with disabilities to earn in the same ways as other professionals with disabilities, then many artists may be discouraged from even trying to tap their creative potential.
III. Promoting the Equality of Workers with Disabilities
Government, nonprofits, and private employers all have roles to play in facilitating disabled artists’ transition from education to self-support. The federal government accomplishes part of this mandate by making its workplaces and information increasingly accessible. Artists may find gainful, meaningful employment in the government by participating in such fields as arts administration, graphic design, writing, communications, and museum services. They may also receive grants, fellowships, or assistance from the National Endowment for the Arts or the Kennedy Center, for example.[131] In this section, I will examine the federal government’s role in hiring people with disabilities and explore the legal status of artists and other creative workers with disabilities.[132] This research needs to be undertaken in the areas of the federal government that apply to the arts. So far, this data collection has focused largely on traditional jobs within the government, such as law, management, and social services.
A. Case Study: Federal Government Hiring
The federal government provides an interesting case study of disability-focused hiring initiatives. It still lags behind its goals in employing people with disabilities, but a rededication to these efforts is emerging.[133] The initiative is happening in various branches and on different levels, but more efforts need to be dedicated to nontraditional employment, such as the arts.
Currently, the Office of Personnel Management maintains a website intended to explain and support this general directive of hiring people with disabilities; more concrete progress is needed.[134] The Workforce Recruitment Program, for example, targets college students with disabilities for jobs within the federal government and with private employers. Private employers’ participation, however, is low and many of these jobs are not focused on the arts.[135]
Under the previous administration, Labor’s Office of Disability Employment Policy was charged in 2001 with leading former President Bush’s New Freedom Initiative, which is:
a comprehensive program to promote the full participation of people with disabilities in all areas of society by increasing access to assistive and universally designed technologies, expanding educational and employment opportunities, and promoting increased access into daily community life.[136] (emphasis added)
“All areas” should include the arts. An Initiative report from a year ago showed persistent unemployment and underemployment for people with disabilities across disciplines, but also some glimmers of advancement. Progress included voting accessibility, emergency preparedness, state training on the ADA, and the establishment of . The Initiative cited improvements in employment by finding:
innovative hiring and working practices, including telework; by revising Schedule A hiring authority;[137] and by forming new disability coordinating councils to address employment within federal agencies” and the establishment of “new initiatives integrating the efforts of the Justice, Labor, Housing and Urban Development, and Veterans Affairs Departments in advancing training and employment for persons with disabilities.[138]
People with disabilities, particularly artists, have not yet felt these advances. Advocates point out that the existence of policies does not always mean the use of them. They cite the government’s underutilization of Schedule A to hire people with disabilities and its disproportionate hiring of people with traditional physical disabilities.[139] And while these more general policy orientations may have a trickledown effect for artists, they still confront the attitudinal barriers that keep them in separate arts groups or out of the arts altogether.
To promote more inclusive workplaces, managers should receive training on the ADA, Rehabilitation Act, Schedule A hires, and reasonable accommodations. Focused efforts should be directed at the arts because of the profound effects of missing disabled artists’ voices in society.
Without this knowledge and awareness in place, government managers will continue to lose qualified employees with disabilities.[140] Problems with promotion and retention have been the trend for the last ten or twelve years. For example, in 2006, the federal government had 2.6 million employees and of them, less than one-percent was individuals with targeted disabilities.[141] Just ten years earlier, this number was closer to 1.16%.[142] The federal government’s workforce grew by 5.5% in that period, meaning that the government lost almost 15% of its people with severe disabilities.[143] Data should be broken down at the national level to see not only where people with disabilities are being placed within the government, but how those statistics compare across sectors.
Agencies need renewed commitments to diversifying their workforces with disabled people (especially women, veterans, racial minorities, and underrepresented disabilities). Whom we include as a society in the workforce is just as important as whom we exclude from the arts because we miss an entire population and its diversity when disabled people are excluded. EEOC Commissioner and Acting Vice-Chair, Christine Griffin,[144] has supported legislative efforts to push for more disability-friendly hiring in the Senior Executive Service; this kind of move would mean more well-paid and respected jobs for people with disabilities.[145] Currently, the EEOC has the highest population of disabled employees—2.37%, followed by SSA (2.07%).[146] While people with disabilities are represented in the federal government at about the same rate as they were in 1984—before the ADA—they have seen increased pay at the senior level.[147] The issue remains that arts-related jobs at the EEOC and SSA are scarce.
Artists with disabilities should not be counseled into taking government jobs only, however. Government jobs can become employment ghettos for people with disabilities, such that other competitive options do not exist.[148] Private employment options are needed, too, especially in the arts—where most of the jobs may be with nonprofits, foundations, and small businesses.[149]
B. Employment Status
Government or even private sector job offers to artists with disabilities do not dissolve all employment barriers. The case law addressing access in the arts is primarily targeted at theatre accessibility for patrons. The absence of precedent addressing the work barriers of artists with disabilities is significant. This notion that people with disabilities are spectators, but not creators, of the arts is both attitudinally based and legally limiting.
The emerging thread in the case law is the treatment of disabled artists as independent contractors and consultants rather than as employees. This trend is important to evaluate. Without being regarded as full-fledged employees, these artists cannot access the protections of the ADA.[150] As much of art employment, especially jobs early in one’s career, is fluid, flexible, and unpredictable, being regarded as contractors puts these artists in the position of weathering any discrimination on their own.[151] It is no wonder that people with disabilities can be discouraged from going into the arts.[152] As independent contractors or consultants, they not only lack the ability to rely on the ADA’s employment protections (Title I), but they also face situations without benefits and stability.
Even as employees, people with disabilities are often second-class employees. They occupy “lesser” jobs across sectors, preventing them from attaining the kind of economic empowerment they seek.[153] This situation in the arts merely reflects a larger trend that places disabled job seekers in positions of unemployment, underemployment, and precarious finances. Dream jobs may present themselves, however rarely, but the social and economic supports are not in place to make transitions feasible for the majority of disabled artists. Often, unless they have financial reserves or economic support from their families, they must turn down their dream jobs to take positions with more stability and predictability.[154] While artists without disabilities may also encounter these challenges, they are more likely to be economically self-reliant and live above the poverty line than artists with disabilities.[155]
C. Disability Rights Internationally
The societal and economic concerns discussed already in this article are present in the global arts market, too. The good news is that supporting the success of people with disabilities is gathering international attention. In 2002, the United Nations began talks about an international convention on the rights of people with disabilities. The U.N. introduced this convention for ratification in 2006; it took force in May 2008. The convention was negotiated more quickly than any other U.N. human rights treaty.[156] It addresses the human rights of disabled people in several key areas:
a. Respect for inherent dignity, individual autonomy including the freedom to make one's own chokes, and independence of persons
b. Non-discrimination
c. Full and effective participation and inclusion in society
d. Respect for difference and the acceptance of persons with disabilities as part of human diversity and humanity
e. Equality of opportunity
f. Accessibility
g. Equality between men and women
h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities[157]
At the core of the convention is the notion that discrimination and prejudice must not only be addressed in positive laws about disability, but also in existing policies and attitudes that may cause inequality for disabled people. [158] The convention recognizes, for example, that women and children with disabilities may be at particular disadvantage legally and socially, and that disability is strongly connected to issues of poverty and disenfranchisement.[159] Societal attitudes toward people with disabilities’ participation in the arts professions might be changed gradually as these other social shifts occur.
The U.S. has persisted in its refusal to sign the convention, even though 137 other countries have signed it.[160] The convention’s precepts resonate with the principles behind the ADA, yet the U.S. has claimed that it already addresses disability rights through the ADA and does not need a separate convention. American legal scholars note that it comports well with existing disability law and was inspired by the model of the ADA.[161] President Obama has suggested that he supports the convention and would be willing to ratify it.[162] Signing the convention would bolster the protections of the ADA by situating them globally. It would also articulate a nuanced domestic perspective on how discrimination penetrates all aspects of daily living, including who is considered “deserving” of coveted, elite, or rare employment opportunities in the arts..
The convention’s most significant impact on artists with disabilities may continue to be abroad, however. Identifying other disability-proactive countries may expand new living and working possibilities for artists. Before the convention, they may have been concerned that once they left the U.S., they would be without access-based approaches to disability and employment.[163] Since many art students and artists want to study and work abroad to expand their training and experiences, the convention presents an exciting moment for people with disabilities to consider global opportunities for enrichment and advancement. This moment cannot come, however, unless artists with disabilities are encouraged to pursue the arts at the same rates (or even more so—to make up for a historical deficit) as non-disabled artists.
Conclusion
In the United States and abroad, people with disabilities continue to move toward recognition as contributing, vital students and employees in the arts. This journey is complicated by unfavorable judicial interpretations of the Americans with Disabilities Act and an overwhelmed social security system that may erect barriers in the transition from school to work. The largest hurdles continue to be attitudinal; artists with disabilities are more likely to be seen as beneficiaries of the arts than as creators and leaders in their fields. Self-advocacy and legal awareness continue to be essential skills to ensure that rights are recognized and respected by schools and employers. Fundamentally, the pursuit of jobs in the arts can entail risk and investment, but those choices should be open for the taking, regardless of disability status. Disabled artists are too absent from the arts and need to be encouraged to express their perspectives and life experiences.
Appendix: Resources for Artists with Disabilities
Government
National Endowment for the Arts
National Council on Disability
Equal Employment Opportunity Commission
United States Access Board
Department of Justice-Disability Rights Section
Department of Labor- Office of Disability Employment Policy
Ticket to Work: “Your Ticket to Work”
Social Security: Work
Nonprofit Organizations
Kennedy Center: Accessibility
National Arts Disability Center
VSA Arts
National Institute of Art and Disabilities
Disability Art and Culture Project
National Organization on Disability
American Association of People with Disabilities
Disability Rights, Education, and Defense Fund
National Disability Rights Network
ADA Watch
Association on Higher Education and Disability
CAST
National Council on Independent Living
Academic and Scholarly Groups
Society for Disability Studies
Review of Disability Studies
Disability Studies in the Humanities
International Disability Rights
United Nations- Enable
World Bank- Disability and Development
World Institute on Disability
Mobility International
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[1][2]
[3] B.A. Swarthmore, J.D. Harvard Law School; Assistant Professor, University of Tulsa College of Law. The author would like to thank Kenna Whelpley and Sean Towner for their capable research assistance. She would also like to extend her gratitude to Ellen Dannin, Paul Miller, Melanie Nelson, Tamara Piety, Courtney Selby, Michael Waterstone, and colleagues at the University of Tulsa. The author acknowledges that her views may not reflect those of the federal government. A revised version of this paper will appear in the October edition of the Rutgers Law Journal.
[4] ABC News, Political Punch: Gov. Paterson: SNL is Enabling Prejudice Against the Disabled (February 2009), available at: .
[5] For a cross-cultural exploration of these diminished expectations, see U.K. Equality and Human Rights Commission, Insight: Work Fit for All, available at: .
[6] See Jayne R. Beilke & Nina Yssel, The Chilly Climate for Students with Disabilities in Higher Education, 33 College Student J. 364 (1999); Stanley Paul, Students with Disabilities in Higher Education: A Review of the Literature, 34 College Student J. 200 (2000).
[7] See Samuel Bagenstos, The Future of Disability Law, 114 Yale L.J. 1 (2004); Michael Waterstone and Michael Ashley Stein, Disabling Prejudice, 102 Northwestern L. Rev. 1351 (2008); Mark Weber, Beyond the Americans with Disabilities Act: A National Employment Policy for People with Disabilities, 46 Buff. L. Rev. 123 (1998).
[8] An extensive literature exists on the roles that the arts can have in improving the lives of people with disabilities, but these articles do not focus on gainful employment in the arts. See e.g., Deirdre Hennan, Art As Therapy: An Effective Way of Promoting Positive Mental Health? 21 Disability & Soc’y 179 (2006) (discussing the role that art can have in building self-esteem and confidence); Malcolm Learmoth & Kathleen Gibson, Creative Thinking, available at: (describing the facilitation of art therapy and its values); Barbara Marriott & Margot Perry White, The Impact of Art Therapy on the Life of a Woman Who Was Mentally Retarded, 30 Amer. J. Art Therapy 10 (1991) (citing a connection between the arts and social interaction skills for people with disabilities);
[9] See Richard Nelson Bolles & Dale S. Brown, Job-Hunting for the So-Called Handicapped Or People Who Have Disabilities 48 (2d. ed. 2000) (providing scenarios in which people with disabilities never recognize their true abilities).
[10] Proceedings of the last forum are online, available at: .
[11] I take a broad view of artists; artists can be writers, actors, comedians, poets, sculptors, painters, dancers, musicians, composers, and a host of other professionals working in the creative and artistic fields.
[12] See the purpose section of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101.
[13] People with disabilities lose 90-92% of Title I ADA cases. See Rep. Steny Hoyer, Not Exactly What We Intended, Justice O’Connor, Washington Post, January 20, 2002 at B01 (contending that 90% of ADA cases are lost); see also Louis Rulli, Employment Discrimination Under the ADA from the Perspective of the Poor: Can the Promise of Title I Be Fulfilled for Low-Income Workers in the Next Decade?, 9 Temple Pol. & Civ. Rts. L. Rev. 345, 346 & 352 (1999) (92.1% ADA cases lost).
[14] See the purpose section of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101.
[15] For an exploration of ADA plaintiffs’ burdens of proof, see Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).
[16] Sutton v. United Airlines, 527 U.S. 471 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
[17] See Bonnie Poitras Tucker, The Supreme Court’s Definition of Disability Under the ADA: A Return to the Dark Ages, 52 Ala. L. Rev. 321, 322-24 (2000) (noting the three-pronged approach to disability that was eroded by the Sutton trilogy of cases).
[18] See Mike Ervin, Fifteen Years of ADA Filled with Setbacks, Victories, The Progressive (January 22, 2007), available at: .
[19] The purpose of the Amendments Act was:
to reject the requirement enunciated by the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases, that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures; to reject the Supreme Court's reasoning in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability, and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Airline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973; to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms `substantially' and `major' in the definition of disability under the ADA `need to be interpreted strictly to create a demanding standard for qualifying as disabled,' and that to be substantially limited in performing a major life activity under the ADA `an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.’
Americans With Disabilities Amendments Act of 2008, H.R. 3195 §2(b)(2-4).
[20] I use the terms “people with disabilities,” “artists with disabilities,” “disabled people,” and “disabled artists” interchangeably to show a respect for person-first language, but I also recognize the cultural attitudes that disable people with mental and physical impairments.
[21] The National Center for Education Statistics provides an interesting chart on education trends, available at: . According to 2004 Census figures, 9.3% of college students have disabilities. See Census 2004 (at 41), available at: .
[22] Much has been written on the topic of self-advocacy. See e.g., Charles Palmer & Richard Roessler, Requesting Classroom Accommodations: Self-Advocacy and Conflict Resolution Training for College Students with Disabilities, 66 J. Rehab. (2000), available at: .
[23] Rehabilitation Act of 1973, PL 93-112.
[24] The unpredictability of the arts market is taken as a given in much of United States and Europe. See e.g., Alan Peacock, The “Manifest Destiny” of the Performing Arts, 20 J. Cultural Econ. 215, 215 (1996) (discussing the “economic prospects for the performing arts”).
[25] See generally Mark C. Weber, Disability and the Law of Welfare: A Post-Integrationist Examination, 2000 U. Ill. L. Rev. 889 (2000) (describing the intersection of disability rights and the Social Security benefits system).
[26] See Francine J. Lipman, Enabling Work for People with Disabilities: A Post-Integrationist Revision of Underutilized Tax Incentives, 53 Am. U. L. Rev. 393, 398 (2003) (citing an eighty-percent growth in social security benefits based on disability over a fifteen year period and arguing that the goal of “integrating” people with disabilities into mainstream employment is not working).
[27] As Peter Blanck notes, the goal can also be to encourage people with disabilities toward entrepreneurial goals, which might enhance their sense of meaning and purpose in work. Peter M. Blanck, et al., The Emerging Workforce of Entrepreneurs with Disabilities: Preliminary Study of Entrepreneurship in Iowa, 85 Iowa L. Rev. 1583, 1591-92 (2000).
[28] They are also aware of the need to stop working to become eligible for Medicaid or to escalate their employment timeline before benefits expire under a plan for independence. See Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L.J. 1, 34 (2004).
[29] Social Security Administration Annual Statistical Report on Social Security Disability Program for 2007: Highlights for 2007 (citing 804,787 disabled workers receiving social security; 901,114 including beneficiaries). For a table of people receiving SSDI benefits by state, see the International Center for Disability Information, ICDI Total Number of People with Disabilities Receiving SSDI by Diagnostic Group (State), available at: .
[30] The 2006 award rate was 27.8%. Denial rates for SSI are available at: .
[31] See John C. Hennessey, Job Patterns of Disabled Beneficiaries, 59 Soc. Security Bull. 3 (1996) (offering that people with disabilities are encouraged to take traditional or predictable employment).
[32] One-stops are government-supported career transition centers that can assist people with disabilities in identifying next steps with regard to employment and also getting training, state services, and unemployment benefits. America’s Service Locator, available at: .
[33] Compare with Megan Oswald, Comment And Casenote: Private Employers Or Private Investigators? A Comment On Negligently Hiring Applicants With Criminal Records In Ohio, 72 U. Cin. L. Rev. 1771, 1797 (2004) (discussing “predictable employment” in the context of hiring employees with criminal records).
[34] See Noel Estrada-Hernandez, et al., Employment or Economic Success: The Experience of Individuals with Disabilities in Transition from School to Work, 45 J. Employ. Counseling 14, 15-16 (2008) (advocating for a strong interest-job match in placing people with disabilities in employment). The researchers also identified the significance of this match in times of life transition, such as moving from school to one’s first job.
[35] For examples of people with disabilities excelling in the arts, consider the Joffrey Ballet’s incorporation of dancers with disabilities. See Katherine Shaver, Child from ‘Ballet Family’ Joins Nutcracker Case Despite Her Disability (December 21, 1008). For more about the growing krip hop movement, see Interview with Leroy Moore- Krip Hop, available on Blogtalkradio: .
[36] Sins Invalid, available at: .
[37] See Armantine M. Smith, Persons with Disabilities as a Social and Economic Underclass, 12 Kan. J.L. & Pub. Pol’y 13, 23 (2002) (“Unemployment and underemployment perpetuate the prejudices against persons with disabilities who are viewed as socially useless, economically unproductive, and dependent. Thus, a self-perpetuating cycle of discrimination and marginalization reinforces the depressed status of persons with disabilities”).
[38] See Vicki Schultz, Life’s Work, 100 Colum. L. Rev. 1881, 1928 (2000) (identifying the criticality of work to identity and well-being).
[39] See Spencer Rand, New Directions in Clinical Legal Education: Creating My Client's Image: Is Case Theory Value Neutral in Public Benefits Cases?, 28 Wash. U. J.L. & Pol'y 69, 76-78 (2008) (emphasizing the negative interactions that consumers with disabilities can have with a benefits system that can dictate where they live, with whom, and what they can or cannot do).
[40] Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 200-208 (1993) (emphasizing self-advocacy skills for people with disabilities).
[41] See e.g., Robert A. Garda, Jr., The New Idea: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071, 1073 (2005) (discussing how the Individuals with Disabilities Education Improvement Act of 2004 represented a fundamental “paradigm shift” in recognizing the interconnection between special education for students with disabilities and general education); Beth Haller, False Positive,
Electric Edge: Online Edition of Ragged Edge Magazine, Jan/Feb. 2000, available at (discussing the changing media images of people with disabilities).
[42] See Shauna Rech, Re-Assessing Reassessment: A Proposal on Behalf of Adult Students with Learning Disabilities to Eliminate Unjustified and Unnecessary Reassessments (November 2008) (working paper on file with author) (arguing that a continuous reassessment protocol unfairly burdens college and university students with learning disabilities).
[43] The percentage of first-year college students with disabilities has more than tripled in twenty years. According to the surveys of college freshmen conducted by the HEATH Resource Center, the share of college freshmen who self-reported that they had a disability increased from just under 3% in 1978 to somewhat over 9% in 1998. A 1999 study sponsored by the U.S. Department of Education found that about 6% of all undergraduates (not just freshmen, as in the HEATH survey) reported having disabilities (1995-96). See American Youth Policy Forum, 25 Years of Educating Students with Disabilities, available at: . Around 14% of college students with disabilities study the humanities. See National Science Foundation, Disability Status of Undergraduate Students, by Age, Institution Type, Financial Aid, and Enrollment Status: 2004, available at: .
[44] See their websites: National Disabled Students Union, ; National Association of Law Students with Disabilities, .
[45] DSSHE, available at: ; DS-HUM, available at: .
[46] See 28 C.F.R. §36.302 (2008).
[47] See Holly A. Currier, The ADA Reasonable Accommodations Requirement and the Development of University Services Policies: Helping or Hindering Students with Learning Disabilities?, 30 U. Balt. L.F. 42 (2000); Anne P. Dupre, Disability, Deference, and the Integrity of the Academic Enterprise, 32 Ga. L. Rev. 393 (1998).
[48] See Paul D. Grossman, Making Accommodations: The Legal World of Students with Disabilities, 87 Academe 41, 45-46 (2001); EEOC website, Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce, available at: .
[49] See Laura Rothstein, College Students with Disabilities: Litigation Trends, 13 Rev. Litig. 425, 425 (1993) (noting the importance of addressing these ADA issues, given the rise in college students with disabilities).
[50] See Anita Silvers & David Wasserman, “Convention and Competence: Disability Rights in Sports and Education,.” 455 in William John Morgan, Ethics in Sport (2d ed. 2007) 455 &458 (identifying the inherent conflict with a liberal arts education—that it is often so broad that it is difficult to identify which parts of it are fundamental and cannot be altered or accommodated). The notion of convention is at play in arts education, too.
[51] The engaged university professor could choose to view the accommodations process as another step in instructional design and one that changes each semester. The dynamic nature of student learning styles and engagement is at the core of teaching. See David Jonassen, Accommodating Ways of Human Knowing in the Design of Information and Instruction, 2 Intl J. Knowledge & Learning 181, 188-90 (2006).
[52] Interestingly, some sighted painters use “blind” techniques to keep themselves unaware of shapes and colors. Roald Nasgaard, Abstract Painting in Canada 140 (2008).
[53] The human body is “responsive to thermal impressions” and “strong vibratory impressions.” Gabor Csepregi, The Clever Body 34-35 (2006).
[54] See Charles A. Riley, Disability and the Media: Prescriptions for Change 108 (2005) (encouraging casting of people with disabilities with an appreciation for who they are and the strengths that they bring to performances).
[55] A number of poets, chiefly Robert Lowell, Anne Sexton, and Sylvia Plath, have experienced what would be diagnosed today as bipolar disorder. Michael R. Trimble, The Soul in the Brain: The Cerebral Basis of Language, Art, and Belief 215-21 (2007).
[56] See Hurtubis Sahlen, et al., Requesting Accommodations in Higher Education, 38 Teaching Exceptional Children 28, 32-34 (2006) (detailing the accommodations process and its shared challenges). Compare with Lech Wisniewski & Robert Sedlak, Assistive Devices for Students with Disabilities, 92 Elem. Sch. J. 297 (1992) (addressing assistive technology issues for elementary school students with disabilities).
[57] The Department of Education’s Office for Civil Rights provides excellent guidance about making the transition from high school to college. Visit Transition of Students with Disabilities to Postsecondary Education: A Guide for High School Educators, available at: .
[58] See Angela Myles Beeching, Beyond Talent 307 (2005) (encouraging artists to consider careers in arts administration because of better salaries and employment outcomes).
[59] While attorney’s fees have been challenged in ADA cases, the prevailing party remains entitled to collect attorney's fees. Employers have higher bars to overcome to show that they are the prevailing parties. 7 Employment Coordinator Practice §77.5 (2009).
[60] See Tricia Luker, The National Disability Rights Network and the Protection and Advocacy System, The Exceptional Parent (September 1, 2007), available at: .
[61] The Cardozo School of Law has established guidelines for mediation of ADA disputes. Its program, process, training, and issues are discussed in the Cardozo Journal of Conflict Resolution, available at: .
[62] See Ann C. Hodges, Dispute Resolution Under the Americans With Disabilities Act: A Report to the Administrative Conference of the United States, 9 Admin. L.J. Am. U. 1007, 1035 (1996) (recognizing that use of ADR may not be as prolific as anticipated by Congress and describing three pilot programs to address this discrepancy).
[63] Professor Michael Waterstone of Loyola-Los Angeles encourages the use of “private attorney-generals” to overcome the under-litigation of ADA cases and the under-representation of individual concerns. He discusses this approach in A New Vision of Public Enforcement, 92 Minn. L. Rev. 434 (2007).
[64] See Manju Banerjee & Stan F. Shaw, High-Stakes Test Accommodations, 32 Assessment for Effective Intervention 171, 179-180 (2007) (emphasizing that documentation from high school may not be enough to satisfy college documentation needs).
[65] Parallels can be found in the area of law, where students with mental illnesses may experience higher rates of attrition than students without disabilities. See Laura Rothstein, Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and the Individual, 69 U. Pitt. L. Rev. 531, 555-56 (2008).
[66] Only 12% of people with disabilities graduate from college; the rate of college graduation for non-disabled students is twice that of people with disabilities. See Peter Dorwick, et al., Postsecondary Education Experiences Across the USA: Experiences of Adults with Disabilities, 22 J. Voc. Rehab. 41, 41–47 (2005).
[67] See Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (2006) (negating movie theater accessibility); U.S. v. Hoyts Cinemas Corp., 380 F.3d 558 (2004); Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126 (2003).
[68] See Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d 579 (D.C. Cir. 1997), cert. denied sub nom., Pollin v. Paralyzed Veterans of Am., 118 S. Ct. 1184 (1998); Miller v. California Speedway Corp., 536 F.3d 1020 (2008).
[69] See Steven Mendelsohn & Martin Gould, When the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the World Wide Web, 7 Comp. L. Rev. & Tech. J. 173, 185 (2004) (emphasizing the importance of timely and accurate delivery of accessible learning materials and other forms of educational communication).
[70] See Jerome H. Reichman, et al., A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works, 22 Berkeley Tech. L.J. 981, 1044 & fn. 312 (2007) (briefly noting copyright exceptions to comply with disability law).
[71] See Elliot W. Eisner & Michael D. Day (editors), Handbook of Research and Policy in Art Education 102-03 (2004) (emphasizing the importance of “studio technique” and the recognition that both technique and writing about art are intellectual pursuits).
[72] See e.g., Frederick Bowes, III, Accessibility Requirements Take on New Significance for Publishers, 21 Publishing Research Qtrly 35, 35-39 (2005) (noting publishers’ resistance to textbook accessibility).
[73] A list of state textbook accessibility laws is available at: .
[74] For example, see the Kentucky Postsecondary Textbook Accessibility Act (2003), available at: .
[75] Instructional Materials Accessibility Act of 2002 (H.R. 490).
[76] See Sheryl E. Burgstahler & Rebecca C. Cory (editors), Universal Design in Higher Education: From Principles to Practice (2008) (providing guidelines for creating a fully accessible learning experience in post-secondary education).
[77] HEOA, Public Law 110-315 (August 14, 2008). Section 103 (24) of HEOA requires:
(24) UNIVERSAL DESIGN FOR LEARNING.—The term ‘universal design for learning’ means a scientifically valid framework for guiding educational practice that—
(A) provides flexibility in the ways information is presented, in the ways students respond or demonstrate
knowledge and skills, and in the ways students are engaged; and
(B) reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and
maintains high achievement expectations for all students, including students with disabilities and students who are
limited English proficient.
[78] House Committee on Education and Labor, The Higher Education Opportunity Act of 2008, available at: .
[79] See Anna Gould, Reauthorizing the Higher Education Act: A Chat with Terry Hartle, 44 Educause Review 60, 60-61 (2009).
[80] This legislation will not only make the education experience more ADA-accessible, but increase financial support for low-income students and students with disabilities. See National Federation of the Blind Praises Passage of Higher Education Opportunity Act (press release: August 1, 2008), available at: .
[81] Most of HEOA has not been funded. IFAP Dear Colleague Letters (GEN08-12), available at: . “While the HEOA authorizes numerous new programs, only the following three are funded at this time: (1) Promoting Postbaccalaureate Opportunities for Hispanic Americans; (2) Master’s Degree Programs at Historically Black Colleges and Universities; and (3) Master’s Degree Programs at Predominantly Black Institutions.”
[82] Id.
[83] See William E. Hitchings, et al., The Career Development Needs of College Students with Learning Disabilities: In Their Own Words, 16 Learning Disabilities Research & Practice 8, 17 (2002); William E. Hitchings, et al., Identifying the Career Development Needs of College Students, 39 J. College Student Dev. 23, 31-32 (1998).
[84] See Tod Citron, et al., A Revolution in the Employment Process of Individuals with Disabilities: Customized Employment as the Catalyst for System Change, 28 J. Vocational Rehabilitation 169, 169 (2008) (“For many, disempowerment and dependency begins early and may continue long into adulthood. Typical scenarios may include special education, separate busing, and child-like curricula often followed by traditional adult service systems”).
[85] Id. (“The most significant elements limiting expression of power and personal influence of people with disabilities may be the impairment/dependency attitudes of some interested supporters, traditional practice providers, and often society in general”).
[86] See John J. Heldrich Center for Workforce Development, Restricted Access, available at: .
[87] Employers’ concerns about the costs of accommodations continue to capture the attention of disability scholars, employment law experts, and government policymakers. See the 2005 Conference Proceedings: Workplace Accommodations and ADA Title I: Policy and the Metrics of “Reasonable,” available at: .
[88] See Elizabeth Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L.J. 399, 412 (2006) (“Sometimes coworkers or customers harbor animus towards a group and thus give an employer an incentive to behave in discriminatory ways. An employer's capitulation to the animus of coworkers or customers involves animus at one level, but, from the employer's perspective, it can look more like market-rational statistical discrimination”).
[89] Pamela Kay Walker, Moving Over the Edge 16 (2005).
[90] See Mehdi Khosrow-Pour, Emerging Trends and Challenges in Information Technology 161 (2006) (describing a study of artists with disabilities who practiced their talents as hobbies and used assistive technology to advance their expressions).
[91] The EEOC has a helpful explanation of the reasonable accommodations process, available at: .
[92] See generally Carrie Basas, Back Rooms, Board Rooms: Reasonable Accommodation and Resistance under the ADA, 29 Berkeley J. Employ. & Lab. L. 59, 63 & 83-84 (2008) (discussing the resistance of employers to granting accommodations and the inherent attitudinal barriers and assumptions).
[93] Walker at 104.
[94] Some states and cities are adopting accommodation-costs assistance programs to encourage employers to hire disabled workers. See, e.g., the District of Columbia’s Office of Disability Rights, ODR Program to Fund Reasonable Accommodations, Press Release: November 19, 2008, available at: .
[95] See Michael Stein, Discrimination: Disabled, Dictionary of American History (Charles Scribner’s Sons, 3rd ed., forthcoming).
[96] Walker at 102 (“Talking about and writing about a lack of empowerment is empowering”).
[97] Social Security Act, 42 U.S.C. 423, §223(d)(1). The act also includes blindness in its disability definition: “or
in the case of an individual who has attained the age of 55 and is blind (within the meaning of “blindness” as defined in section 216(i)(1)), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.” For more information about the programs, visit Social Security’s website, Qualify and Apply for Disability and SSI, available at: .
[98] Walker at 75.
[99] See 2008 Social Security Changes Fact Sheet, available at: .
[100] See e.g., 20 C.F.R. §404.1568 Social Security Administration, Skill Requirements (defining transferable skills), available at: .
[101] See Walker at 74 (explaining why she, as an actress with a disability, ends up explaining the self-employment calculations and nuances to case workers).
[102] Social Security Online-Plan to Achieve Self-Support (PASS), available at: .
[103] See Social Security Work Incentives: PASS, available at: .
[104] See Supplemental Security Income (Indiana), available at: .
[105] See Student Earned Income Exclusion for SSI, available at: .
[106] Social Security recipients will receive a 5.8% cost-of-living adjustment in 2009. See 2009 Social Security Changes, available at: .
[107]See Bolles & Brown at 48; see also Gooloo S. Wunderlich & Dorothy P. Rice, The Social Security’s Disability Decision Process: A Framework for Research (Second Interim Report 24 (1998) (describing the occupational classification system used by SSA).
[108] Information geared toward students is available at: .
[109] From Social Security’s Ticket to Work website, available at:
“The Ticket Program is part of the Ticket to Work and Work Incentives Improvement Act of 1999 – legislation designed to remove many of the barriers that previously influenced people’s decisions about going to work because of the concerns over losing health care coverage. The goal of the Ticket Program is to increase opportunities and choices for Social Security disability beneficiaries to obtain employment, vocational rehabilitation (VR), and other support services from public and private providers, employers, and other organizations.”
[110] See Disability Benefits 101 (California), available at: .
[111] Social Security has a detailed website, explaining the benefits structure, available at: .
[112] See Robert F. Rich, et al., Critical Legal and Policy Issues for People with Disabilities, 6 DePaul J. Health Care L. 1, 51 (2002) (noting that SSA still struggles with encouraging meaningful employment opportunities for people with disabilities, without punishing them for working); See also Katherine V.W. Stone, Legal Protections for Atypical Employees: Employment Law for Workers Without Workplaces and Employees Without Employers, 27 Berkeley J. Emp. & Lab. L. 251, 280 (2006) (discussing how nontraditional employees do not receive the benefits of employment discrimination laws, either).
[113] See Jane L. Ross, Supplemental Security Income: Long-Standing Problems Put Program at Risk for Fraud, Waste, and Abuse, available at: .
[114] Supplemental Security Income: Supporting People with Disabilities and the Elderly Poor, available at: ; see also, SSI Payment Amounts, available at: .
[115] See Understanding Supplemental Security Income, available at: .
[116] Supplemental Security Income: Supporting People with Disabilities and the Elderly Poor, available at: .
[117] Federal Poverty Guidelines (2008), available at: .
[118] See generally Noel Smith, et al., Disabled People's Cost of Living: More Than You Would Think (Joseph Rowntree Foundation 2004) (examining the hidden costs in the lives of people with disabilities).
[119] Several university systems internationally have decided to charge less for arts educations because the earning potential is lower than in the sciences, for example. See Pedro Teixeira, et al., Markets in Higher Education: Rhetoric or Reality? 215 (2004) (exploring a tuition repayment system in which humanities, arts, and education paid the least each year).
[120] Social Security Online: SSI Spotlight on Individual Development Accounts (2009 Edition), available at:
[121] See End the Disability Backlog, available at: .
[122] Social Security Disability Reform Bill Waives Waiting Period for Terminally Ill, available at: .
[123] See generally John Stobo, et al. (eds.), Improving the Social Security Disability Decision (2007).
[124] See Michael Morley, The Case Against a Specialized Court for Federal Benefits, 17 Fed. Cir. Bar J. 379, 397-98 (2008).
[125] SSA Press Office- Commissioner Barnhart Unveils New Social Security Disability Determination Process, available at: .
[126] See Morley.
[127] CRS Report to Congress: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI): Proposed Changes to the Disability Determination & Appeals Process, available at: .
[128] See Ken Matheny, Social Security Disability and the Older Worker: A Proposal for Reform, 10 Geo. J. Poverty L. & Pol’y 37, 39 (2003).
[129] Id.
[130] A good example of possible collaboration is the National Collaborative on Workforce and Disability (NCWD), available at: .
[131] The Obama administration has moved in the direction of including more people with disabilities in decision-making capacities in national policy. President Obama recently appointed Kareem Dale to be his special adviser on disability policy. See White House Press Release (February 12, 2009), Vice President Joe Biden Announces Kareem Dale As Special Assistant to the President for Disability Policy, available at: .
[132] A comprehensive list of state and federal resources for artists with disabilities is available through VSA Arts (Massachusetts), available at: .
[133] Section 501 of the Rehabilitation Act prohibits disability-based employment discrimination in the federal sector. The Rehabilitation Act of 1973, available at: .
[134] See Melissa Turley, Hiring the Disabled, Human Resource Executive Online (January 21, 2009), available at: .
[135] See OPM’s website, Federal Employment of People with Disabilities, available at: .
[136] Workforce Recruitment Program, available at: .
[137] New Freedom Initiative, available at: .
[138] One advocate informally studied Schedule A hires. His work is available at . Schedule A is also explained in more detail on the Department of Labor’s website, available at: .
[139] New Freedom Initiative, available at: .
[140] The EEOC completed a report on the hiring of people with disabilities in the federal workforce. See EEOC Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force (January 2008), available at: .
[141] See, e.g., Stay on Target: Hiring, Accommodating, and Retaining Federal Employees with Disabilities (pamphlet 2005) (providing advice about agency initiatives to hire and retain disabled employees), available at: .
[142] Leadership for the Employment of Americans with Disabilities (p. 7), Cornell University & AAPD Forum (March 2008), available at: .
[143] Leadership for the Employment of Americans with Disabilities at 9.
[144] Leadership for the Employment of Americans with Disabilities at 11.
[145] Commissioner Griffin was recently charged with leading OPM.
[146] Alyssa Rosenberg, EEOC Commissioner Pushes Hiring of People with Disabilities, available at: .
[147] Leadership for the Employment of Americans with Disabilities at 4-7.
[148]Commissioner Christine Griffin, Keynote Address, Perspectives Conference (December 2006), available at: .
[149] See Fred Reid, Re-Designing the Shelter: Remploy and the Future of Supported Employment for People with Sight Loss (New Beacon 2007) (discussing employment ghettoes), available at: .
[150] See Andrew Taylor, Do Arts Jobs Count as Jobs?, Arts Journal-The Artful Manager (online), available at: .
[151] See Aberman v. J. Abouchar & Sons, Inc., 60 F.3d 1148 (7th Cir. 1998) (finding that an outside salesman was an independent contractor, and not an employee covered by the ADA; laying out five-factored analysis); Cook v. Farmers Ins., Inc., 2008 U.S. Dist. LEXIS 84815, *13-14 (finding independent contractor was not covered by the ADA).
[152] See generally Evan W. Glover, Legitimacy of Independent Contractor Suits for Hostile Work Environment Under Section 1981, 52 Ala. L. Rev. 1301, 1315 (2001) (drawing parallels between the ADA and other anti-discrimination statutes in not covering independent contractors).
[153] VSA Arts’ career survey asks specific questions about how people with disabilities have been discouraged from going into the arts, available at: .
[154] See Marta Russell, Backlash, the Political Economy, and Structural Exclusion, 21 Berkeley J. Emp. & Lab. L. 335, 336 & 359 (2001) (exploring the causes of the underemployment of people with disabilities, including worker discouragement).
[155] See Denise Bissonnette, Beyond Traditional Job Development: The Art of Creating Opportunity (M. Wright 1994) (encouraging job developers to consider careers outside the box).
[156] See Gwendolyn Mink & Alice O’Connor, Poverty in the United States 232 (2004)( (finding that nearly forty-percent of “working-age disabled adults who do not work . . . live in poverty”).
[157] UN Convention, available at: .
[158] UN Convention on the Rights of Persons with Disabilities, UN Enable website- Guiding Principles of the Convention, available at: .
[159] UN Convention, Monitoring of the Implementation of the Convention, available at: .
[160] UN Convention, Convention in Brief, available at: .
[161] UN Convention, Latest Developments, available at (as of January 1, 2009).
[162] See Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, 13 Texas J. Civ. Lib. & Civ. Rts. 167 (2008); Michael L. Perlin, “Through the Wild Cathedral Evening:” Barriers, Attitudes, Participatory Democracy, Professor TenBroek, and the Rights of Persons with Mental Disabilities, 13 Texas J. Civ. Lib. & Civ. Rts. 413 (2008).
[163] See President Barack Obama & Vice-President Joseph Biden’s website, The Change We Need: Disabilities, available at: .
[164] To explore study abroad options, students with disabilities can turn to such organizations such as the University of Minnesota’s Access Abroad, available at: .
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