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ADA Recognizes Right to Play; Can ADA Point to Right to Health Care?

Last updated on 2013.09.03

Last month I drove toward the notion of a right to health care by considering the European idea of a right to bear children. Now let's consider the right to health care in the context of the right to play.

Last week I listened to an NPR report (and read some related stories) that talked about the inclusive playground movement, an effort to make playgrounds more accessible to kids with disabilities. I learned that we now consider play a civil right:

...Last year, the federal government made access to play areas a civil right under the Americans with Disabilities Act.

"Play areas are not just places where kids have fun," says Eve Hill, a civil rights lawyer with the Justice Department, which enforces the ADA. "They are places where kids learn to interact with the world, and with each other." That places playgrounds in the same category as other civil rights touchstones.

"Recreation was one of the places where the civil rights movement started, with desegregating pools and desegregating lunch counters and movie theaters. These were not unimportant," she says [Robert Benincasa, "For Kids with Special Needs, More Places to Play," NPR: All Things Considered, 2013.08.27].

Since the first Bush Administration, we have recognized as a nation that physical and mental impairments should not interfere with the rights of any citizen to "participate in the mainstream of American life—to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services." It doesn't matter why a citizen is in a wheelchair—three year old with spina bifida, adult with brain damage from drinking and driving, we don't care. Every citizen has rights, and we will all pay extra to ensure that every citizen can exercise rights like using a public toilet, accessing a voting booth, and sliding down a slide with the other kids.

We don't let disability stop Americans from participating in normal community life. Don't we have a similar obligation with regards to health care costs? Whether people get sick or injured through genetics, bad behavior, or bad luck, they can be financially crippled by a single medical incident. As the number-one cause of bankruptcy in the United States, high health care costs can destroy a family's savings and credit rating, raising significant barriers to their ability to "participate in the mainstream of American life."

If children have a right to play, don't we have an obligation to ensure parents aren't so bankrupted by a medical mishap that they never have time to take their kids to play?

In anticipation of fallacious conservative hollerings about natural rights, let's read what President Franklin D. Roosevelt said about rights and economic security:

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made [Franklin Delano Roosevelt, State of the Union address, 1944.01.11].

In positing a "Second Bill of Rights," Roosevelt was saying that rights don't mean much without the practical safeguards that allow us to enjoy them. FDR included in his Second Bill of Rights "The right to adequate medical care and the opportunity to achieve and enjoy good health" and "The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment."

With a little work, one can read a right to play into FDR's subsidiary, practical rights. And we currently recognize that right. One doesn't have to work nearly as hard to see in FDR's thinking the right to health care that we still struggle to accept.


  1. Troy Jones 2013.09.03

    Rights are so important that we really need to use them properly so as not to denigrate the term.

    A right is something for which I do not require the participation of another, e.g. my right to speech doesn't require you to listen.

  2. caheidelberger Post author | 2013.09.03

    Troy, that sounds like exactly the fallacy mentioned in the Salon article I link above (here's the URL: Rights don't just happen. There's an argument that rights don't exist outside the social contract. Consider property: you can say "I have a right to my stuff!" But that claim is mostly meaningless unless you have laws and law enforcement to ensure that you can properly hold onto your stuff without constant armed vigilance, not to mention engage in fair commerce to acquire more stuff. You only get laws and law enforcement through the participation of others.

    Freedom of speech is meaningless without the participation of others. The First Amendment isn't talking about talking to yourself on Harney Peak. It's about your right to express opinions in the community. Our participation is required, not in paying attention to your words and doing what you say, but in resisting the urge to sock you in the jaw and agreeing to restrain and punish anyone else who tries to stifle your speech. Our participation is our commitment to protect your right. Without that participation, you have no "right," just an action that you hope you get by with.

  3. Troy Jones 2013.09.03

    Cooperation is different than participation. Enforcement of the right is not participation.

    I think there needs to be a real study of what Rights are. The use bastardizing the term.

  4. Michael Black 2013.09.03

    Schools are looking at cutting recess in many parts of the country.

    For Syracuse’s elementary school students, recess will no longer be part of the daily agenda, as the district’s master schedule for the new year mandates every minute of their day be spent on instruction, save for a 30-minute lunch break, the Post-Standard reports.

    Recess is gleefully withheld to address an array of classroom sins like unfinished work, excessive talking and bad grades. Childhood is now old school in the 'No Child Left Behind' era. Playing, socializing and exercising during recess is now regarded as a wasteful and frivolous waste of precious time that could be used for studying and cramming in those precious facts that children must know.

  5. caheidelberger Post author | 2013.09.03

    The way you were using the word, Troy, I think we can include cooperation in "participation". I'm contending that your right doesn't meaningfully exist unless other people participate in securing that right. We don't bastardize a term by pointing out the common action required to make the term meaningful.

    But let's put Troy's concern in context. Under the ADA, the U.S. holds that children have a right to play. Troy, is that a bastardization of the term "right"?

  6. Troy Jones 2013.09.03

    Really? You are going to put "right to play" in context such that is comparable to the Right to free speech?" Parents and schools deprive kids the privilege to play all the time.

    The interchanging of rights with privileges/benefits is bastardizing Rights.

    The concept that it is good policy to give disabled children as similar as possible opportunities/privileges/benefits as non-disabled children or the denial/lack of effort to provide it is bad policy is understandable.

    But, every good policy doesn't become a right.

  7. caheidelberger Post author | 2013.09.03

    Troy, I too was jarred to hear the phrase "right to play" on the radio. My gut reaction is to agree that the right to speak made the Bill of Rights and the right to play did not because there is a big difference between the two.

    But we're talking public policy, not parenting (I restrict my daughter's freedom of speech regularly, too.) I wanted to get your read on this specific right, the right to play, and you seem to be saying that yes, it is an example of the rights-language bastardization that you decry.

    Does your critique thus extent to the entire spirit of the ADA? Are we wrong to implement an ADA in the spirit of ensuring that all citizens have equal access to public facilities and other essential elements of mainstream community life? Are we wrong to call such equal access a "right"?

  8. caheidelberger Post author | 2013.09.03

    [By the way, I'm just tickled to have Troy taking time to speak with all of us today. :-) ]

  9. Troy Jones 2013.09.03

    The policy associated with the ADA is in most cases associated with ensuring that people with disabilities have the same opportunities/benefits/privileges more easily accessed by the non-disabled.

    The fact that these are not "rights" does not diminish the merit of the policy. And, yes it is wrong to refer them as rights.

    Let's use an example.

    Voting is a right. While it can be a right violation to place undue hardship on voting (e.g. putting polling places underwater in places where some people vote who aren't inclined to vote for a particular party), there is no "right" people or the government have to transport me to the polls, whether I am disabled or not. You can't deny my exercise of this right but that doesn't mean I can call you and force you to drive me to the car because I don't have a car and you do (thus unequal access) or that the government must give everyone a ride to the polls. (PS if the government only gives rides to some no matter the rationale but not others, it isn't a "right." The ride is a benefit/privilege.

    The fact the government, parties, and individuals provide means of access to get people with unequal access to the polls is a privilege/benefit extended for a myriad of reasons (agenda agreement, concepts of inclusivity/non-discrimination, or altruism). But voting is the right. Not the access.

    And, the policy of extending privileges/benefits to those with disabilities is in general a good policy to be reasonably pursued.

    To close the loop: Rights are inalienable and universal. There can be no discrimination on who gets to exercise the right. But, the burden of exercising rests with the individual. And, the only requirement of others is they can't restrict my exercise.

    The development of every human being is good for society. Play is a positive means for development. A child whose disabilities inhibit play can diminish their development. This diminished development can be bad for society. Thus, it is in our interests to find reasonable means for them to play according to their capabilities but failure to do so is not a denial of a Right, even if it may be morally wrong.

  10. Wayne B 2013.09.03

    Well said, sir!

    My bigger fear is these accessibility requirements will severely limit the number of playgrounds afforded to the public. NPR said it often costs hundreds of thousands of dollars more to be fully accessible, rather than marginally accessible. To be compliant means lots of tax dollars, or a decision not to build a playground. It would be horrible to further reduce opportunities to enjoy the outdoors and exercise, especially in a country with a problem with growing waistlines and children with Type 2 diabetes.

  11. Douglas Wiken 2013.09.03

    Some of the things labeled "rights" for political or partisan purposes or business purposes are actually "Policies with mutual benefits" or something more appropriate. They may be more like a treaty that is obeyed as long as it is mutually beneficial to parties involved. Converting useful ideas into rights can diminish more rights than it increases or even protects.

    Schools have been forced to spend thousands on elevators that in come cases have been used by one child for one ninth month time. Those thousands might have been better spent on better books and a plan to have all classes for that single student in one room rather than on multiple floors of a poorly designed older structure.

  12. Troy Jones 2013.09.04


    I agree. Rather than argue the merits of a policy intellectually, it is easier (and misleading) to argue something is a "right" because who is for denying rights?

  13. caheidelberger Post author | 2013.09.04

    Troy, I agree that voting is a right, while a ride to the polls is a privilege. But even Troy acknowledges, in his "undue hardship" comment, that there is some level at which protecting the right to vote entails guaranteeing some reasonable level of access to the polls. If the state decided to require everyone vote at one central polling place in Pierre, the courts would intervene, saying one polling place for a 70,000-square-mile jurisdiction effectively denies lots of residents their equal right to vote. (Somewhat related: remember the Vogons and the planetary destruction notice posted at Alpha Centauri?)

    More directly to the point of this article, if the Lake County Auditor set up Madison's voting booths in a building accessible only via a couple flights of steep steps, the ADA would require that the county put in ramps or elevators or some such accommodation. The ADA says disabled voters have a right to such access, right?

    Let me take another swing at the word right (and notice that I'm not even duking it out on the right to health care yet; I'm more than happy just to work on Troy's basic concept of rights). Troy says that extending access to public playgrounds to kids with disabilities is good, but he seems uneasy about saying it's a right.

    But as the ADA stands, the parents of a child confined to a wheelchair can expect their city parks department to accommodate wheelchair access in any new playground design. If the city builds a playground without such accommodations, those parents can call city hall and complain. The city's response cannot be, "We don't feel like giving you and your child that privilege. Take a hike." The city's response must be, "We have erred. We have failed to give your child something that the law says your child should have. We'll go fix that right now." If the city fails to act, the parents can sue, and the courts will compel action.

    When parents of disabled children can expect inclusive playground, when citizens can sue and punish officials who don't make new playgrounds inclusive, aren't we saying that we have a right to inclusive playgrounds? Where is the threshold between rights and privileges here? What trick am I missing in this word game?

  14. Troy Jones 2013.09.04

    To answer your last paragraph:

    If the government passes a law, it doesn't become a right. It is legally guaranteed privilege/benefit. And, failure to provide the legally quaranteed privilege/benefit is a cause for legal action.

  15. Jana 2013.09.05

    And Troy knows that it take money to protect rights...excuse benefits.

  16. caheidelberger Post author | 2013.09.05

    So practically, Troy, what's the difference? Is the rights/privileges dichotomy just a distinction of degree, saying, for instance, that speech and political participation are more important than playground access?

Comments are closed.