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Rights Gone Wrong: How Law Corrupts the Struggle for Equality, by Richard Thompson Ford
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A New York Times Book Review Notable Book
Since the 1960s, ideas developed during the civil rights movement have been astonishingly successful in the fight against overt discrimination. But can they combat the whole spectrum of social injustice---including conditions that aren't directly caused by bigotry? In Rights Gone Wrong, Richard Thompson Ford argues that extremists on both sides of the political divide have hijacked civil rights for personal advantage, diverting our attention from serious social injustices. Is equality really served by endless litigating and legislating against every grievance or slight? Brilliantly argued, shrewd, and lively, Rights Gone Wrong offers "a crisp analysis of the limits of our civil rights laws and a prescription for how to move beyond them" (Kirkus Reviews).
- Sales Rank: #1156314 in Books
- Published on: 2012-10-30
- Released on: 2012-10-30
- Original language: English
- Number of items: 1
- Dimensions: 8.50" h x .61" w x 5.50" l, .73 pounds
- Binding: Paperback
- 288 pages
Review
“Rights Gone Wrong is sharp and surprising, and casts the discrimination debate in a clarifying new light.” ―Jeffrey Rosen, The New York Times Book Review
“Ford has written a highly accessible narrative that underscores the need for Americans to roll up their sleeves and do the heavy lifting necessary to address persistent economic and racial inequality….With this book, Ford has in effect contributed a new placard to the American protest march.” ―America magazine
“Cogent…A rationalist analysis of the efficacy of a multitude of antidiscrimination laws…All sides can learn much from Ford's thinking.” ―Publishers Weekly
“Persuasive…This subject tends to produce polemical writing on both sides, but Ford is consistently measured and thought-provoking. Recommended to anyone interested in public affairs.” ―Library Journal
About the Author
Richard Thompson Ford is the George E. Osborne Professor of Law at Stanford Law School. He is a regular contributor to Slate and has written for The New York Times, The Washington Post, The Boston Globe, and the San Francisco Chronicle.
Excerpt. © Reprinted by permission. All rights reserved.
1
Entitlement and Advantage
Now you want me to tell you my opinion on autism…? A fraud, a racket. For a long while we were hearing that every minority child had asthma … Why was there an asthma epidemic amongst minority children? Because I’ll tell you why: the children got extra welfare if they were disabled, and they got extra help in school. It was a money racket … Now the illness du jour is autism. You know what autism is? I’ll tell you what autism is. In 99 percent of the cases, it’s a brat who hasn’t been told to cut the act out. That’s what autism is … Everybody has an illness … Stop with the sensitivity training. You’re turning your son into a girl and you’re turning your nation into a nation of losers.
On July 16, 2008, the radio talk show host Michael Savage managed to offend parents of disabled children, racial minorities, and women in less than a minute and a half—an accomplishment that his rivals Rush Limbaugh and Glenn Beck can only aspire to. The group Autism United demonstrated in front of the New York radio station that carries Savage’s program. One of his sponsors, the insurance company Aflac, promptly gave Savage some unwelcome sensitivity training: it pulled its advertising from his program, explaining that the company found “his recent comments about autistic children to be both inappropriate and insensitive.” Criticism was almost unanimous among doctors, child psychologists, disability rights advocates, parents, and pundits alike. Several local stations dropped Savage’s program in response to public outrage.
Savage is a provocateur—deliberately insulting and extreme, with a loose regard for factual accuracy. According to the clinical psychologist Catherine Lord, autism is “just like epilepsy or … diabetes or a heart condition. [Savage’s comments are] like blaming the child with a heart condition for not being able to exercise.”1 Savage eventually backpedaled, saying his remarks were “hyperbole,” designed to draw attention to the problem of fraudulent diagnosis. He agreed to devote another show to the subject so that parents of autistic children and others could air dissenting views.
Savage, like Limbaugh and Beck, is conservative and contentious, but he is also idiosyncratic—often unexpectedly thoughtful, even cerebral. While Limbaugh and Beck are activists for conservative politicians and causes, Savage is distinguished by a kind of crotchety ennui. As contemptuous of other conservatives as he is of liberals (he called Glenn Beck a “hemorrhoid with eyes”), he treats partisan politics with an aloof disdain: “You’ll have to go to one of the other talk-show hosts to get ‘Obama’s a Ma-a-arxist’ and ‘McCain is a wa-a-ar hero.’”2 As a result, where other conservative talk show hosts are annoyingly predictable, Savage’s off-the-cuff ramblings and intemperate tirades are often surprising and intriguing, and they often contain at least a grain of truth. For instance, Dr. Lord admitted that mild autism is vaguely defined and can be a catchall diagnosis for children with behavioral problems who fit no other category. A year and a half after Savage’s remarks, the psychiatrists in charge of writing the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders announced that they were considering folding several types of mild autism—such as Asperger’s syndrome and pervasive developmental disorder—into a single broad category—autism spectrum disorder—reflecting a new understanding that autism is not a single disorder but rather a range of conditions, from severe mental disabilities to mild emotional abnormalities that can come with extraordinary mental gifts.
There’s a professional consensus that severe autism is a discrete neurobiological condition, but mild cases can be hard to distinguish from less well-defined conditions, such as attention deficit hyperactivity disorder (ADHD) and other vaguely defined “learning disabilities.” Here, diagnosis is difficult and contestable, and expert opinions differ. “We’re fairly good about making the diagnosis of kids who are classically autistic, but as you move away from that specific disorder, it gets harder … [F]or kids who are of average, close to average or above average intelligence, it is difficult to sort out what is eccentricity versus what is a real social deficit,” said Dr. Lord.3
Federal law doesn’t reflect a continuum that includes mild autism and learning disabilities along with eccentricity and poor concentration. For legal purposes, a disability is a discrete condition: either you have it, and therefore have a right to an array of special concessions and extra help, or you don’t. The law doesn’t define learning disabilities with precision, but it does provide a partial definition: “a severe discrepancy between achievement and intellectual ability.”4 In practice, this means that learning disabilities are diagnosed, in large part, by identifying a gap between a child’s performance in academic settings and the performance one would expect of a child of his or her age and IQ.
Civil rights laws entitle all disabled people to special accommodations and services: a blind person might require an exam to be administered orally or written in Braille; a paraplegic might require voice-recognition software or transcription. These accommodations let the disabled reach their potential. Children with learning disabilities are also legally entitled to accommodations and services that other children are not, such as special tutoring and extra time on exams. In theory, just as a blind person needs Braille, a Seeing Eye dog, or a cane to overcome his blindness, a person with ADHD may need extra time to get organized and overcome his inability to concentrate.
But there are some important differences between severe disabilities like blindness and milder learning and behavioral disabilities. First, conspicuous disabilities often trigger reflexive animus or prejudice. Many employers wrongly assume disabled people can’t work, and businesses discriminate against them because of squeamishness and irrational aversion. A business that refuses to accommodate a disabled person might secretly wish to exclude him. Milder disabilities don’t trigger such reflexive prejudice because, for the most part, they are not conspicuous: typically an employer learns of a learning or an emotional disability only when an employee seeks an accommodation for it. Second, most of the accommodations that people with severe disabilities need wouldn’t help a nondisabled person at all. A sighted person wouldn’t benefit from having an exam written in Braille; an able-bodied person wouldn’t get much of an edge from using voice-recognition software or a professional transcriber. By contrast, people with learning and emotional disabilities often enjoy extra time on competitive exams, costly one-on-one tutoring, and exemptions from discipline for disruptive behavior—things that would benefit anyone. Finally, unlike blindness or a physical disability, many learning disabilities are hard to define objectively; as Dr. Lord admits, they are on a continuum with ordinary “eccentricity.” Put these together and you have a recipe for gaming the system: no one would suggest that an eccentric person with a wandering mind has a right to extra time on a timed exam, but someone with ADHD does—and the two can be hard to distinguish. This doesn’t suggest that civil rights for people with mild cognitive disabilities are a “racket,” but it does suggest that they have the potential to encourage opportunism and can lead to unwarranted advantages.
Suppose two children achieve low scores on a competitive timed exam: one has a diagnosed learning disability, and the other doesn’t. Suppose both of the children’s scores would improve dramatically if they had extra time to complete the exam. Is it fair to give one student extra time and not the other? Maybe. In theory, the extra time isn’t an advantage for the person with a learning disability; it’s just the way he copes with his disability. But if the disability is on a continuum with garden-variety poor concentration, then in fairness anyone with poor concentration should be entitled to extra time in proportion to the severity of his concentration deficit. This would, of course, defeat the purpose of a timed exam, which is to test not only skills and knowledge but also the ability to perform quickly.
* * *
The Harvard medical student Sophie Currier became a heroine to advocates of breast-feeding in 2007 when she demanded and eventually won the right to a breast-pumping break during a medical licensing exam. No hothouse flower, Currier first took the exam—widely considered to be one of the most challenging of all professional qualification exams—when eight months pregnant and came just short of a passing score. Currier chose to nurse her newborn baby as most experts in the medical profession she was poised to join recommend. But she still needed to pass the exam in order to start her residency at Massachusetts General in the fall. So she asked the National Board of Medical Examiners to give her a break—specifically, an extra hour each day to express and store her breast milk. The board refused, informing Currier that it would accommodate only disabilities as defined by the Americans with Disabilities Act.
Currier wasn’t the first woman to get a less-than-nurturing reaction to her nursing. Until recently, nursing an infant in public was considered indecent exposure and could result in citation or even arrest. Businesses and employers not only refused to accommodate nursing mothers but often deliberat...
Most helpful customer reviews
9 of 10 people found the following review helpful.
An excellent book, novel in approach and clearly written
By Book lover -Philadelphia
From the first words of the introduction, author and law professor Richard Ford is crystal clear in his arguments, accurate in his analyses of racial incidents of the past and tells a fascinating tale. As the main part of the book develops, there are many more references to landmark legal cases, something that this retired lawyer enjoyed but that may not be everyone's cup of tea. For serious readers, it presents a novel thesis very well. Overall, it is an exceptionally well-written book and worth reading. Given the topic, it could also be a marvelous choice for book clubs and discussions as it is very likely to provoke lively discussions.
Recommended for the reader who wants a serious book that will provoke thought on a major issue of our times.
0 of 1 people found the following review helpful.
Hmmm...
By M. Heiss
I am a fan of Richard Thompson Ford's "The Race Card" The Race Card: How Bluffing About Bias Makes Race Relations Worse.
I am not sure this book is as carefully written as the other. It seems to start from a place of fundamental sympathy with feel-good liberalism -- with saying the right thing, with having good intentions, regardless of results. But the book never makes the connection to recognize the contradictions of liberal policies. Maybe it's time to consider whether liberals AREN'T the good guys, the ones with the good ideas -- maybe that would explain the continuing struggle of black Americans for social and economic equality. Liberals convince blacks to be dependent on government for the solutions to problems. Look around.
The book develops some good points:
+ Do racial disparities justify quotas? (p 118)
+ Where do rights come from? (p 224 -- rights are a moral entitlement)
+ How did "civil rights" become "self-esteem rights?" (p. 139, 157)
+ What are the trade-offs in demanding "rights" as opposed to working to change minds? (p. 63, 243)
+ How does the Law of Unintended Consequences explain how demanding rights makes the problem it was meant to solve ... worse? (p. 14, 68, 73)
Walter Williams has more internally consistent arguments in his book "Race and Economics." I recommend it. Race & Economics: How Much Can Be Blamed on Discrimination? (Hoover Institution Press Publication)
0 of 1 people found the following review helpful.
rights written correctly
By k d richards
"Rights Gone Wrong" is the second book by this author I have read and my opinion of his writing style and his intellect could not be higher. This book is a joy to read in spite of (because of?) the seriousness of the topic.
His dissection of what civil rights laws were intended to do versus the unintended consequenses that have happened instead should give anyone pause that is pushing for more laws to deal with perceived rights issues. For that matter, explaining the difference between rights and inconveniences was done extremely well.
For instance, laws on the books to make sure older job applicants have an equal chance to get hired for any job. Noble? Perhaps, but when was the last time you heard of a lawsuit because an older applicant did not get hired? You hear all the time of suit being brought because an older worker was let go from a job. So, the law protects older workers that have a job, not so much for one that doesn't. Plus, is this really a "civil right" to be hired because you are older?
Each chapter is filled with like examples, including the final chapter with his suggestions on how rights could be handled differently and better. Hopefully, this book could start discussions that could lead to actual solutions rather than leaving it up to courts to try to make sense of laws written.
One last thing, if there ever was a write in campaign for a new Supreme Court Justice, Richard Thompson Ford would be my first choice.
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