Faculty Post: Poverty & Children with Disabilities

by Professor Mary O’Connell

Why are poor people poor? There’s a question lawyers, law students – indeed, many in the U.S. and around the world — could chew on for many hours. The answers, one would assume, are highly complex, and vary substantially by country and over time. In fact, however, American law has shown a remarkable tendency to oscillate between two highly simplistic explanations of poverty, what we might call the “luck hypothesis” and the “work ethic” hypothesis. Under the luck hypothesis, anyone could wind up poor. Those of us who aren’t poor were/are lucky. We had gifts like competent, loving parents, good health, decent schools. Those who are poor, under this hypothesis, have been unlucky. Under the “work ethic” hypothesis, by contrast, the poor are, at least disproportionately if not entirely, individuals who lack self-discipline and good habits. Yes, people are dealt different hands in life, but those who wind up poor didn’t try very hard. They don’t plan, they don’t work hard, they don’t capitalize on what is available to them. Given these competing – and seemingly mutually exclusive – hypotheses about poverty, what makes for sensible social policy?

For many years, I’ve had the privilege of working with two NUSL grads – Attorney Taramattie Doucette and Attorney Jane Smith of Greater Boston Legal Services (GBLS) — the founders of the Children’s Disability Project at GBLS. Tara and Jane work with poor families who have a child with a disability. Under the Social Security Act (SSA), a child with a disability whose family has an extremely low income qualifies for Social Security benefits. (The family must also have assets of less than $2000, in toto, though a car and a house — if they own one – are excluded). Added to the Social Security Act in the 1970’s, the children’s disability provisions seem to reflect the luck hypothesis. A child with a disability probably faces challenges that a non-disabled child does not, and those challenges are shared by her family. When that family is very poor (and 9.7% of U.S. children live in what the U.S. Census Bureau denominates “extreme poverty”), wise social policy might provide a modest income stream to help the family help the child.   It turns out, however, that today’s poor children with disabilities find themselves in the path of exactly the luck/work ethic collision described above. While the diagnoses of some disabilities are steady or falling (e.g., cerebral palsy), others are expanding – some rapidly. Rates of childhood diabetes, for example, have exploded, as have diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and what are referred to generically as “speech delays”, a possible early indicator of dyslexia or other learning disabilities. But what are these new diagnoses? Are they made up disorders, fastened on by parents eager for the income that SSD (Social Security Disability)-Children’s might bring? Are they the child or parent’s “own fault”, for neglecting exercise, eating a poor diet, etc.? While it might seem that a medical diagnosis of a disability – signed off on by an M.D. – would be sufficient to meet applicable legal requirements, disability law is an ever-changing mix, with lots of discretion on both the administrative and judicial levels. Is ADHD a “disability”? Should very poor parents whose child is diagnosed with ADHD get financial help? Or does the existence of benefits push parents to burden their child with a label that may compromise her chances for a bright future?

It’s easy to assume that the most complex legal arguments arise in clashes between corporate titans – and to be sure, many do. But much of American law’s complexity – from the text of arcane regulations, to procedural mazes, to Congressional inertia and deep philosophical rifts – plays out in the daily lives of poor children – a stunning 22% of whom currently live below the federal poverty line. Painful as it is to say, this seems to be a growth industry – with lots of room for the work of good lawyers.

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