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                                       LEGAL DEVELOPMENTS:

           CAREERS IN THE ARTS FOR PEOPLE WITH DISABILITIES
                                             Carrie Griffin Basas2

                                                     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



11
2
 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.



                                                                        Quest
         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,


3
  ABC News, Political Punch: Gov. Paterson: SNL is Enabling Prejudice Against the Disabled (February 2009),
available at: http://blogs.abcnews.com/politicalpunch/2009/02/gov-paterson-sn.html.
4
  For a cross-cultural exploration of these diminished expectations, see U.K. Equality and Human Rights
Commission, Insight: Work Fit for All, available at:
http://www.equalityhumanrights.com/en/publicationsandresources/Pages/InsightWorkfitforall-
disability,healthandtheexperienceofnegativetreatmentintheBritishworkplace.aspx.
5
  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).
6
  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).
7
  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: http://www.insiderart.org.uk/UserFiles/Microsoft%20Word%20-
%20%27Creative%20Thinking%27%20text%20only.pdf (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);
8
  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).



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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 arts10— 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




9
  Proceedings of the last forum are online, available at: http://artsedge.kennedy-center.org/forum/.
10
   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.
11
   See the purpose section of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101.
12
   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).



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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



13
   See the purpose section of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101.
14
   For an exploration of ADA plaintiffs‘ burdens of proof, see Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).
15
   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).
16
   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).
17
   See Mike Ervin, Fifteen Years of ADA Filled with Setbacks, Victories, The Progressive (January 22, 2007),
available at: http://www.progressive.org/node/4452.
18
   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.‘



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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



Americans With Disabilities Amendments Act of 2008, H.R. 3195 §2(b)(2-4).
19
   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.
20
   The National Center for Education Statistics provides an interesting chart on education trends, available at:
http://nces.ed.gov/programs/digest/d06/tables/dt06_383.asp?referrer=report. According to 2004 Census figures,
9.3% of college students have disabilities. See Census 2004 (at 41), available at:
http://www.census.gov/prod/2004pubs/04statab/educ.pdf.
21
   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: http://findarticles.com/p/articles/mi_m0825/is_3_66/ai_66032258.
22
   Rehabilitation Act of 1973, PL 93-112.
23
   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‖).
24
   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).



                                                                                                                   5
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




25
   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).
26
   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).
27
   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).
28
   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:
http://www.icdi.wvu.edu/disability/State_Tables/State33.htm.
29
   The 2006 award rate was 27.8%. Denial rates for SSI are available at:
http://www.socialsecurity.gov/policy/docs/statcomps/ssi_asr/2007/table68.html.
30
   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).



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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



31
   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: http://www.servicelocator.org/.
32
   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).
33
   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.
34
   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: http://www.blogtalkradio.com/EndeavorFreedomTV/2009/02/08/Interview-
with-Leroy-Moore-Krip-Hop-1.
35
   Sins Invalid, available at: http://www.sinsinvalid.org/.
36
   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‖).
37
   See Vicki Schultz, Life‟s Work, 100 Colum. L. Rev. 1881, 1928 (2000) (identifying the criticality of work to
identity and well-being).
38
   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



                                                                                                                     7
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,


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).
39
   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).
40
   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 http://www.ragged-edge-
mag.com (discussing the changing media images of people with disabilities).



                                                                                                                       8
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 accommodations45 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.



41
   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).
42
   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: http://www.aypf.org/publications/special_ed.pdf. 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:
http://www.nsf.gov/statistics/wmpd/underrl.htm.
43
   See their websites: National Disabled Students Union, http://www.disabledstudents.org/; National Association of
Law Students with Disabilities, http://www.nalswd.org/.
44
   DSSHE, available at: http://listserv.buffalo.edu/cgi-bin/wa?A0=DSSHE-L; DS-HUM, available at:
http://listserv.umd.edu/archives/ds-hum.html.
45
   See 28 C.F.R. §36.302 (2008).
46
   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).
47
   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: http://www.eeoc.gov/federal/qanda-employment-with-disabilities.html.



                                                                                                                    9
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


48
   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).
49
   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.
50
   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).
51
   Interestingly, some sighted painters use ―blind‖ techniques to keep themselves unaware of shapes and colors.
Roald Nasgaard, ABSTRACT PAINTING IN CANADA 140 (2008).
52
   The human body is ―responsive to thermal impressions‖ and ―strong vibratory impressions.‖ Gabor Csepregi,
THE CLEVER BODY 34-35 (2006).
53
   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).
54
   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).



                                                                                                                    10
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




55
   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).
56
   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: http://www.ed.gov/about/offices/list/ocr/transitionguide.html.
57
   See Angela Myles Beeching, BEYOND TALENT 307 (2005) (encouraging artists to consider careers in arts
administration because of better salaries and employment outcomes).
58
   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).
59
   See Tricia Luker, The National Disability Rights Network and the Protection and Advocacy System, The
Exceptional Parent (September 1, 2007), available at: http://www.articlearchives.com/medicine-health/diseases-
disorders/1489213-1.html.



                                                                                                                 11
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


60
   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:
http://www.cojcr.org/ada.html.
61
   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).
62
   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).
63
   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).
64
   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).
65
   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).
66
   See Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (2006) (negating movie theater accessibility);



                                                                                                                12
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



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).
67
   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).
68
   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).
69
   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).
70
   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).



                                                                                                             13
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




71
   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).
72
   A list of state textbook accessibility laws is available at: http://www.tsbvi.edu/textbooks/afb/state-laws.htm.
73
   For example, see the Kentucky Postsecondary Textbook Accessibility Act (2003), available at:
http://www.lrc.state.ky.us/record/03rs/SB85.htm.
74
   Instructional Materials Accessibility Act of 2002 (H.R. 490).
75
   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).
76
   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.
77
   House Committee on Education and Labor, The Higher Education Opportunity Act of 2008, available at:
http://edlabor.house.gov/higher-education-opportunity-act-of-2008/index.shtml.



                                                                                                                 14
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


78
   See Anna Gould, Reauthorizing the Higher Education Act: A Chat with Terry Hartle, 44 Educause Review 60, 60-
61 (2009).
79
   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:
http://www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=344.
80
   Most of HEOA has not been funded. IFAP Dear Colleague Letters (GEN08-12), available at:
http://www.ifap.ed.gov/dpcletters/GEN0812FP0810.html. ―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.‖
81
   Id.
82
   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).
83
   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‖).
84
   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‖).



                                                                                                                   15
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


85
   See John J. Heldrich Center for Workforce Development, Restricted Access, available at:
http://www.heldrich.rutgers.edu/Research/ResearchDetail.aspx?id=1214.
86
   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:
http://www.csun.edu/cod/conf/2005/proceedings/2351.htm.
87
   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‖).



                                                                                                                   16
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


88
   Pamela Kay Walker, MOVING OVER THE EDGE 16 (2005).
89
   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).
90
   The EEOC has a helpful explanation of the reasonable accommodations process, available at:
http://www.eeoc.gov/policy/docs/accommodation.html#requesting.
91
   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).
92
   Walker at 104.
93
   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:
http://newsroom.dc.gov/show.aspx/agency/odr/section/2/release/15501.



                                                                                                                      17
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




94
   See Michael Stein, Discrimination: Disabled, DICTIONARY OF AMERICAN HISTORY (Charles Scribner‘s Sons, 3rd
ed., forthcoming).
95
   Walker at 102 (―Talking about and writing about a lack of empowerment is empowering‖).
96
   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: http://www.socialsecurity.gov/d&s1.htm.
97
   Walker at 75.



                                                                                                                       18
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




98
   See 2008 Social Security Changes Fact Sheet, available at:
http://www.ssa.gov/pressoffice/factsheets/colafacts2008.pdf.
99
   See e.g., 20 C.F.R. §404.1568 Social Security Administration, Skill Requirements (defining transferable skills),
available at: http://www.ssa.gov/OP_Home/cfr20/404/404-1568.htm.



                                                                                                                      19
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


100
    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).
101
    Social Security Online-Plan to Achieve Self-Support (PASS), available at:
http://www.socialsecurity.gov/disabilityresearch/wi/pass.htm.
102
    See Social Security Work Incentives: PASS, available at:
http://www.ok.gov/abletech/documents/Social%20Security%20Work%20Incentives-PASS.pdf.
103
    See Supplemental Security Income (Indiana), available at:
http://www.iidc.indiana.edu/disabilitybenefitsandwork/selfsupport.htm.
104
    See Student Earned Income Exclusion for SSI, available at: http://www.ssa.gov/OACT/COLA/studentEIE.html.
105
    Social Security recipients will receive a 5.8% cost-of-living adjustment in 2009. See 2009 Social Security
Changes, available at: http://www.ssa.gov/pressoffice/colafacts.htm.



                                                                                                                20
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


106
    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).
107
     Information geared toward students is available at:
http://www.iidc.indiana.edu/disabilitybenefitsandwork/studentearnedincome.htm.
108
     From Social Security‘s Ticket to Work website, available at: http://www.yourtickettowork.com/program_info
―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.‖
109
     See Disability Benefits 101 (California), available at:
http://www.disabilitybenefits101.org/ca/programs/work_benefits/ttw/program2.htm.



                                                                                                                  21
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




110
    Social Security has a detailed website, explaining the benefits structure, available at:
http://www.ssa.gov/work/aboutticket.html.
111
    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).
112
    See Jane L. Ross, Supplemental Security Income: Long-Standing Problems Put Program at Risk for Fraud,
Waste, and Abuse, available at: http://www.gao.gov/archive/1997/he97088t.pdf.
113
    Supplemental Security Income: Supporting People with Disabilities and the Elderly Poor, available at:
http://www.cbpp.org/7-19-05imm.htm; see also, SSI Payment Amounts, available at:
http://www.ssa.gov/OACT/COLA/SSIamts.html.
114
    See Understanding Supplemental Security Income, available at: http://www.ssa.gov/ssi/text-understanding-
ssi.htm.



                                                                                                                   22
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              SSA could begin a streamlined process for
must wait five months to receive benefits after            people with these concerns about SSDI and
being approved for them. This issue is of                  reduce the time to be more in line with the SSI
particular significance to people with terminal            timeframe. However, both programs need to
and progressing illnesses. 121 In contrast,                have backlogs resolved by perhaps simplifying
people seeking SSI benefits can begin                      eligibility criteria and consolidating application


115
    Supplemental Security Income: Supporting People with Disabilities and the Elderly Poor, available at:
http://www.cbpp.org/7-19-05imm.htm.
116
    Federal Poverty Guidelines (2008), available at: http://www.atdn.org/access/poverty.html.
117
    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).
118
    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).
119
    Social Security Online: SSI Spotlight on Individual Development Accounts (2009 Edition), available at:
http://www.ssa.gov/ssi/spotlights/spot-individual-development.htm
120
    See End the Disability Backlog, available at:
http://www.oregonlive.com/editorials/oregonian/index.ssf?/base/editorial/1217899516174000.xml&coll=7.
121
    Social Security Disability Reform Bill Waives Waiting Period for Terminally Ill, available at:
http://seniorjournal.com/NEWS/SocialSecurity/2007/7-06-15-SocialSecurity.htm.



                                                                                                                23
receiving them a month after their requests               steps and personnel involvement.
have been approved. (This 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            Recently, SSA has been testing a new SSA
more complicated than necessary and may                   appeals structure in the Boston region.124 It
involve too many decision-makers. The                     has simplified the appeals process to two steps
application is considered anew at least three             by creating the position of a federal reviewing
times, ensuring a range of input, but frustrating         official to examine state agency determinations
the process of early findings and                         when a claimant requests it to do so. The new
determinations.123                                        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                      These state differences could be minimized
inconsistent. New Hampshire, for example,                 with clearer, simpler eligibility criteria and the
grants favorable decisions in 59% of its SSI              streamlining of the number of actors in the
initial decision cases, while West Virginia               determination and appeals processes.
grants favorable decisions in only 27% of the
cases.126

Determinations by administrative law judges               The testimony of vocational experts should be
(ALJs) often depend on vocational experts‘                compared to existing data on disability and
testimony. Their opinions can be technically              employment. ALJs can be briefed on the latest
correct, yet not reflect the realities of living          research in disability and employment.128 SSA
with disabilities and returning to work.                  should weigh the disabled person‘s work
Disability can be a disadvantage at work, yet             preferences and training. If a career in that
these experts often treat disabled people as              field, such as the arts, is not possible,


122
    See generally John Stobo, et al. (eds.), IMPROVING THE SOCIAL SECURITY DISABILITY DECISION (2007).
123
    See Michael Morley, The Case Against a Specialized Court for Federal Benefits, 17 Fed. Cir. Bar J. 379, 397-98
(2008).
124
    SSA Press Office- Commissioner Barnhart Unveils New Social Security Disability Determination Process,
available at: http://www.ssa.gov/pressoffice/pr/DSI-pr.htm.
125
    See Morley.
126
    CRS Report to Congress: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI):
Proposed Changes to the Disability Determination & Appeals Process, available at:
http://assets.opencrs.com/rpts/RL33179_20060424.pdf.



                                                                                                                24
being similarly situated to nondisabled job               allowances should be made for retraining in a
candidates.127                                            field that will provide meaningful employment.

People with disabilities have not played                  People with disabilities need to be more
central, consistent roles in social security              involved in SSA‘s leadership, as senior level
policy, especially where SSA‘s future is                  managers and policymakers. Changes in
concerned.129                                             policies should 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




128
    Id.
127
    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
    A good example of possible collaboration is the National Collaborative on Workforce and Disability (NCWD),
available at: http://www.ncwd-youth.info/index.html.
130
    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:
http://www.whitehouse.gov/the_press_office/Vice-President-Joe-Biden-Announces-Kareem-Dale-As-Special-
Assistant-to-the-President-for-Disability-Policy/.
131
    A comprehensive list of state and federal resources for artists with disabilities is available through VSA Arts
(Massachusetts), available at: http://www.vsamass.org/artistresources.htm.



                                                                                                                25
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 www.DisabilityInfo.gov. 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,




132
    Section 501 of the Rehabilitation Act prohibits disability-based employment discrimination in the federal sector.
The Rehabilitation Act of 1973, available at: http://www.eeoc.gov/policy/rehab.html.
133
    See Melissa Turley, Hiring the Disabled, Human Resource Executive Online (January 21, 2009), available at:
http://www.hreonline.com/HRE/story.jsp?storyId=166595132.
134
    See OPM‘s website, Federal Employment of People with Disabilities, available at:
http://www.opm.gov/DISABILITY/.
135
    Workforce Recruitment Program, available at: http://www.dol.gov/odep/pubs/brochures/wrp4Cstd.htm.
136
    New Freedom Initiative, available at: http://www.whitehouse.gov/infocus/newfreedom/.
137
    One advocate informally studied Schedule A hires. His work is available at
http://www.coachmike.net/special_report.php. Schedule A is also explained in more detail on the Department of
Labor‘s website, available at: http://www.opm.gov/disability/appointment_disabilities.asp.



                                                                                                                   26
        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,


138
    New Freedom Initiative, available at: http://www.whitehouse.gov/infocus/newfreedom/.
139
    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: http://www.eeoc.gov/federal/report/pwtd.html.
140
    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:
http://www.shoplrp.com/product/p-4238.html.
141
    Leadership for the Employment of Americans with Disabilities (p. 7), Cornell University & AAPD Forum (March
2008), available at: http://www.ilr.cornell.edu/edi/publications/PolicyForum/PolicyForum_2008-03-21.ppt.
142
    Leadership for the Employment of Americans with Disabilities at 9.
143
    Leadership for the Employment of Americans with Disabilities at 11.
144
    Commissioner Griffin was recently charged with leading OPM.
145
    Alyssa Rosenberg, EEOC Commissioner Pushes Hiring of People with Disabilities, available at:
http://www.govexec.com/story_page.cfm?articleid=38784&ref=rellink.



                                                                                                              27
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


146
    Leadership for the Employment of Americans with Disabilities at 4-7.
147
    Commissioner Christine Griffin, Keynote Address, Perspectives Conference (December 2006), available at:
http://www.eeoc.gov/initiatives/lead/speeches/12-06.html.
148
    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:
http://www.fredreid.co.uk/word_docs/redesigning_the_shelter.doc.
149
    See Andrew Taylor, Do Arts Jobs Count as Jobs?, Arts Journal-The Artful Manager (online), available at:
http://www.artsjournal.com/artfulmanager/main/do-arts-jobs-count-as-jobs.php.
150
    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).
151
    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).
152
    VSA Arts‘ career survey asks specific questions about how people with disabilities have been discouraged from
going into the arts, available at: http://www.vsarts.org/PreBuilt/artists/career_survey.cfm.



                                                                                                               28
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 identities157

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


153
    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).
154
    See Denise Bissonnette, BEYOND TRADITIONAL JOB DEVELOPMENT: THE ART OF CREATING OPPORTUNITY (M.
Wright 1994) (encouraging job developers to consider careers outside the box).
155
    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‖).
156
    UN Convention, available at: http://www.un.org/disabilities/default.asp?navid=12&pid=150.
157
    UN Convention on the Rights of Persons with Disabilities, UN Enable website- Guiding Principles of the
Convention, available at: http://www.un.org/disabilities/default.asp?navid=14&pid=156.
158
    UN Convention, Monitoring of the Implementation of the Convention, available at:
http://www.un.org/disabilities/default.asp?id=157#committee.



                                                                                                               29
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


159
    UN Convention, Convention in Brief, available at:
http://www.un.org/disabilities/default.asp?navid=13&pid=162.
160
    UN Convention, Latest Developments, available at http://www.un.org/disabilities/latest.asp?id=169 (as of
January 1, 2009).
161
    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).
162
    See President Barack Obama & Vice-President Joseph Biden‘s website, The Change We Need: Disabilities,
available at: http://www.barackobama.com/issues/disabilities/.
163
    To explore study abroad options, students with disabilities can turn to such organizations such as the University
of Minnesota‘s Access Abroad, available at: http://www.umabroad.umn.edu/access/.



                                                                                                                  30
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

http://arts.endow.gov/



National Council on Disability

http://www.ncd.gov/



Equal Employment Opportunity Commission

http://www.eeoc.gov



United States Access Board

http://www.access-board.gov/



DisabilityInfo.Gov

http://www.disabilityinfo.gov



                                                                                                  31
Department of Justice-Disability Rights Section

http://www.ada.gov/



Department of Labor- Office of Disability Employment Policy

http://www.dol.gov/odep/



Ticket to Work: “Your Ticket to Work”

http://www.yourtickettowork.com/



Social Security: Work

http://www.ssa.gov/work/aboutticket.html




NONPROFIT ORGANIZATIONS



Kennedy Center: Accessibility

http://www.kennedy-center.org/accessibility/



National Arts Disability Center

http://nadc.ucla.edu



VSA Arts



                                                              32
http://www.vsarts.org/



National Institute of Art and Disabilities

http://www.niadart.org/



Disability Art and Culture Project

http://www.dacphome.org/



National Organization on Disability

http://www.nod.org/



American Association of People with Disabilities

http://www.aapd-dc.org/



Disability Rights, Education, and Defense Fund

http://www.dredf.org



National Disability Rights Network

http://www.napas.org/



ADA Watch

http://www.adawatch.org/




                                                   33
Association on Higher Education and Disability

http://www.ahead.org/



CAST

http://www.cast.org



National Council on Independent Living

http://www.ncil.org/




ACADEMIC AND SCHOLARLY GROUPS



Society for Disability Studies

http://www.disstudies.org/



Review of Disability Studies

http://www.rds.hawaii.edu/



Disability Studies in the Humanities

https://listserv.umd.edu/archives/ds-hum.html




INTERNATIONAL DISABILITY RIGHTS



                                                 34
United Nations- Enable

http://www.un.org/disabilities/



World Bank- Disability and Development

http://www.worldbank.org/disability



World Institute on Disability

http://www.wid.org/



Mobility International

http://www.miusa.org/




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