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Does Disneyland Discriminate Against the Disabled?—A Commentary by Adam Cohen

The following commentary was posted on Time.com on July 23, 2012.

Does Disneyland Discriminate Against the Disabled?
By Adam Cohen

Tina Baughman wanted to take her daughter on a trip to Disneyland for her eighth birthday. But there was a problem: Baughman suffers from limb girdle muscular dystrophy, which makes it hard for her walk or stand up from a seated position. She contacted Disneyland in advance and asked for permission to use a Segway. Disneyland said no. It told her to use a wheelchair or motorized scooter — which Baughman says does not work for her.

Baughman sued under the Americans with Disabilities Act, charging disability discrimination, and last week a federal appeals court took her side. “Technological advances didn’t end with the powered wheelchair,” the U.S. Court of Appeals for the 9th Circuit said — and it ordered Disneyland to reconsider its decision. As the court said in the first line of its opinion: “Segways at Disneyland? Could happen.”

The ruling sends an important message. The ADA — which requires employers and public facilities to take reasonable measures to accommodate people with disabilities — was passed with great hoopla and bipartisan support in 1990. But employers and major institutions decline all the time to make accommodations for the disabled — even, as in the Disneyland case, when it would be easy to do the right thing.

The ADA was a civil rights milestone when it was enacted — Edward Kennedy described it as “an emancipation proclamation for people with disabilities.” Until then, disabled people had few legal weapons for challenging policies that excluded them from jobs and public facilities. But the ADA rewrote the legal landscape: suddenly, equal access was a national commitment, and the burden was on institutions and people who dealt with disabled people to make “reasonable accommodations” for their different abilities.

Baughman’s request to Disneyland was precisely the sort the ADA was intended to help with. She was not making unreasonable demands for the park to completely change how it operates. She was just asking, in advance, if she could ride a device that people ride safely in public all of the time. Forty-four states and the District of Columbia have laws authorizing the use of Segways.

Disney invoked its policy of barring all two-wheeled vehicles, which includes bicycles and Segways. In court, it argued that since Baughman could access the park using a wheelchair or a motorized scooter a Segway was not strictly necessary for her to use the park – it was not their problem if her visit was made “uncomfortable or difficult.” But the Court of Appeals rightly pointed out that if the ADA were read to require only accommodations that are strictly necessary, it would not require many accommodations at all. After all, the court said, a paraplegic could drag himself up the steps of a courthouse, so installing a ramp would not strictly speaking be necessary.

Baughman’s suit hardly makes for the sort of publicity that image-conscious Disney is looking for. Disney, however, is also known for a commitment to conformity. It was only this year that Disney ended a 60-year policy barring its theme park employees from sporting beards — though they can still be no longer than a quarter inch.

Disney is hardly alone in digging in its heels on disability issues — even in this era of the ADA. Disabled people live with an enormous amount of inconvenience, pain and humiliation from unaccommodating companies, government entities and individuals. The court’s reference to a disabled person dragging himself up the courthouse steps is — incredibly — a real example. Until the Supreme Court ruled against it by a 5–4 vote in 2004, Polk County, Tenn., forced a man with a broken pelvis and two legs in casts to get out of his wheelchair and crawl up the steps to attend court hearings that they decided to hold on the second floor. When he finally refused, he was arrested for missing his hearing.

It is not clear how the saga of Disneyland and the Segway will end. The Ninth Circuit has only ordered the amusement park to reconsider its policy — and held out the possibility that it could keep the ban if it could show that safety truly requires it. But it appears likely that Disney will ultimately have to yield on its Segway ban in Baughman’s case, which would be a victory not only for her and her daughter but for any of us who may — whether we are expecting it or not — one day require a little accommodation.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.