columbia human rights law review - SSRN

COLUMBIA HUMAN RIGHTS LAW REVIEW

THE LAW: WHAT’S DISABILITY STUDIES GOT TO DO WITH IT OR AN INTRODUCTION TO DISABILITY LEGAL STUDIES

Arlene S. Kanter

Reprinted from Columbia Human Rights Law Review Vol. 42, No. 2 Winter 2011

Electronic copy available at: http://ssrn.com/abstract=1822439

COLUMBIA HUMAN RIGHTS LAW REVIEW Vol. 42, No. 2

Winter 2011 EDITORIAL BOARD 2010–2011 Editor-in-Chief Kinara A. Flagg

Executive Editor Marti Morgan

Journal Managing Editors Christina M. Dieckmann Juan Carlos Ibarra Matthew F. Kuhn Journal Articles Editors Andrew Case Jocelyn Courtney Achraf Farraj Anja Havedal-Ipp Reed M. Keefe Alyssa Scott Submissions/Notes Editors Matthew Galeotti Elizabeth Gates Tarek Z. Ismail Jane Kim J. Taylor Kirklin Senior Editors Devin Alavian Justine Brennan Leslie Hannay Milli Hansen Rena Stern

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Electronic copy available at: http://ssrn.com/abstract=1822439

COLUMBIA HUMAN RIGHTS LAW REVIEW Vol. 42, No. 2

Winter 2011

STAFF EDITORS Mae Ackerman-Brimberg Roy Awabdeh Adele Marilyn Batonga Barbara Bijelic Derek Borchardt Rashmi Chopra Angela Ijane Chung Laura Corbin Lauren Daniel Michelle Nicole Diamond Katie Donohue Adriana Garcia Eduardo Gardea Ritu Ghai Jessica Hallett Alex Hogan Andrea L. Johnson Akshaya Kumar

Martie Kutscher Cherice Landers Carla Laroche Rob Laser Jamie Lee Richard G. Lee Andrea Lo Kylie Marks Bridget McDevitt Laiza Melena Laura Mergenthal Aerin Miller Alison Moe Katherine Moore David Morales Janine Morna Whitney O’Byrne Natalie Orpett

Benjamin Rankin Will Rollins Nana Ama Sarfo Mary Schindler Erica Selig Adam Shpeen Elizabeth Shutkin Caitlin Smith David Sneed MiRi Song David Stoopler Ashley Sullivan Shayda Vance Jessica Weidmann Courtney Wilson Amy Wolf Glover Wright Joy Ziegeweid

BOARD OF ADVISORS Mark Barenberg Barbara Black John Boston Reed Brody

Katherine Franke Philip Genty Harvey Goldschmid Jack Greenberg

James S. Liebman Michael Ratner Peter Rosenblum Susan Sturm

THE LAW: WHAT’S DISABILITY STUDIES GOT TO DO WITH IT OR AN INTRODUCTION TO DISABILITY LEGAL STUDIES

Arlene S. Kanter* Imagining disability as ordinary, as the typical rather than the atypical human experience, can promote practices of equality and inclusion that begin to fulfill the promise of a democratic order. Rosemarie Garland Thomson (2001)1

I. INTRODUCTION In the introduction to No Pity: People with Disabilities Forge New Civil Rights Movement, journalist and author, Joseph P. Shapiro claims that “there is a disability angle to every story he develops.”2 What is proposed in this Article is that there is a “disability angle” to * Laura J. and L. Douglas Meredith Professor of Law, Syracuse University College of Law; Founder and Director, Disability Law and Policy Program; CoDirector, Syracuse University Center on Human Policy, Law, and Disability Studies. An early version of this article was present at the Second City International Conference on Disability Studies in Education and Law at Syracuse University on May 1–3, 2009. The author completed this article during 2009–10 when she was a Fulbright Scholar at Tel Aviv University (2009–10) and a recipient of the 2010–11 Distinguished Switzer Fellowship from the United States Department of Education’s National Institute on Disability and Rehabilitation Research. The author wishes to thank the Syracuse University College of Law for summer research funds that supported research for this article. The author can be contacted at [email protected]. 1. Seeing the Disabled: Visual Rhetorics of Disability in Popular Photography, in New Disability History: American Perspectives 372 (Paul Longmore & Lauri Umansky, eds., 2001). 2. Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 10 (1993).

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every aspect of the law. The new field of Disability Studies has begun to challenge the legal academy to examine such “disability angles.” As such, Disability Studies has much to offer the law as well as legal education, just as a critical examination of the law has much to offer the field of Disability Studies. It is now well accepted that Disability Studies has emerged as a new and exciting field of academic inquiry. Disability Studies applies social, cultural, historical, legal, philosophical, and humanities perspectives to understanding the place of disability in society. It explores disability as a social and cultural construct and as a phenomenon reflecting and constituting identity formation by incorporating the “real-lived” experiences of people with disabilities. Furthermore, Disability Studies adopts a cross-disability perspective and explores differences and commonalties in the experiences of the diverse groups of people society has defined as “the other” based on their disability. Many academic institutions in the United States now offer courses or programs in Disability Studies, 3 and most professional

3. In 1993, the Society for Disability Studies developed the following working guidelines for any program that describes itself as ‘Disability Studies’: (1) It should be interdisciplinary/multidisciplinary. Disability sits at the center of many overlapping disciplines in the humanities, sciences, and social sciences. Programs in Disability Studies should encourage a curriculum that allows students, activists, teachers, artists, practitioners, and researchers to engage the subject matter from various disciplinary perspectives; (2) It should challenge the view of disability as an individual deficit or defect that can be remedied solely through medical intervention or rehabilitation by “experts” and other service providers. Rather, a program in disability studies should explore models and theories that examine social, political, cultural, and economic factors that define disability and help determine personal and collective responses to difference. At the same time, Disability Studies should work to de-stigmatize disease, illness, and impairment, including those that cannot be measured or explained by biological science. Finally, while acknowledging that medical research and intervention can be useful, Disability Studies should interrogate the connections between medical practice and stigmatizing disability. (3) It should study national and international perspectives, policies, literature, culture, and history with an aim of placing current ideas of disability within their broadest possible context. Since attitudes toward disability have not been the same across times and places, much can be gained by learning from these other experiences. (4) It should actively encourage participation by disabled students and faculty, and should ensure physical and intellectual access; and (5) It should make it a priority to have leadership positions held by disabled people; at the same time it is important to create an environment where contributions from anyone who shares the above goals are welcome. Soc’y for Disability Studies, Guidelines

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academic organizations now have sections devoted to the study of disability within their respective disciplines.4 But why should we, as law faculty and legal scholars, care about including disability-related topics or better yet, a Disability Studies perspective within our law school curriculum? Why would we want to consider introducing a Disability Studies perspective into a course on evidence, property, family law, or even tax? What can the emerging field of Disability Studies teach us and our students? Ultimately, then, how will inclusion of a Disability Studies perspective within the legal academy help our students to become better lawyers, and perhaps more importantly, help to promote fairness and justice in society? My response to these questions is relatively straightforward, as set forth in this article. Disability Studies infuses into the legal academy a perspective of those who are routinely made invisible and marginalized, just as feminist legal studies,5 and critical race theory6 for Disabilities Studies Programs, http://www.disstudies.org/disability_studies_ program_guidelines/guide lines_disability_studies_programs. 4. See, e.g., the American Association of Law School’s Disability Law Section (which the author co-founded), the American Philosophical Association, the American Association of Religion, the American Historical Association, and the Modern Language Association, to name a few. 5. Feminist legal studies is a critical examination of law that focuses on the extent to which law and legal practice have contributed to the subjugation of women. For important examples of feminist legal studies see generally Feminist Legal Theory: An Anti-Essentialist Reader, (Nancy E. Dowd & Michelle S. Jacobs eds., 2003); Mary Joe Frug, Postmodern Legal Feminism 128 (1992); Nancy Levit & Robert R. M. Verchick, Feminist Legal Theory: A Primer Critical America (2006); Kathryn Abrams, The Constitution of Women, 48 Ala. L. Rev. 861 (1997); Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 Harv. L. Rev. 1045 (1992); Kenneth L. Karst, Woman's Constitution, 1984 Duke L.J. 447; and Anita Silvers, Reprising Women's Disability: Feminist Identity Strategy and Disability Rights, 13 Berkeley Women's L.J. 81 (1998). 6. The earliest writings on Critical Race Theory may be traced to the works of Professor of Law, Derrick Bell, who rejects the belief that the legal reforms of the Civil Rights movement positively affected both the construction and application of laws due to the inherent racism in the law and legal institutions. See Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Dilemna, 93 Harv. L. Rev. 518, 522–23 (1980) (examining, in part, the limited gains of the Brown decision as a result of the unwillingness of white people to cede institutional power); Derrick A. Bell, Who’s Afraid of Critical Race Theory? 1995 U. Ill. L. Rev. 893, 898–908 (describing Critical Race Theory and the debates around it). See also generally Mary Brewer, Staging Whiteness (2005); Critical Race Theory: The Cutting Edge (Richard Delgado ed., 1995); Critical Race Theory: The Key Writings that Formed the Movement (Kimberlé Crenshaw, et. al. eds., 1995); Jean Stefancic, Critical Race Theory: An Introduction (2001); Milner S. Ball, The Legal Academy and Minority Scholars, 103 Harv. L. Rev. 1855

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did before it for other groups. Disability Studies help us to see disability as part of the human experience and to understand how the law, and society, in general, views difference as a deviation from an “unstated norm.” 7 When the issue involves race, for example, whites are treated, but never acknowledged, as the norm, while blacks are considered the deviation. Similarly, when the issue is gender, men are treated, but never acknowledged, as the norm, while women are considered the deviation. When the issue is disability, the able bodied, seeing, hearing, mentally healthy person with a certain score on an intelligence test is treated, but never acknowledged, as the norm, while people who communicate through sign language, use wheelchairs, or speak, think, or hear differently, are considered the deviation. Disability Studies helps us to understand implications of these preferences. Disability Studies, therefore, offers the law and legal education the opportunity to critically examine the role of “normalcy” within the law and within society, generally. It challenges us to examine our unstated assumptions and requires us to recognize, appreciate, and most importantly, value differences among us. Since law itself is in the business of deciding how to recognize, legitimate, and allocate differences—different rights, responsibilities, resources, and even justice within society—Disability Studies offers an appropriate lens through which we can view the legal profession, and the meaning of difference within the legal system, and society. Conversely, the field of law may also inform the field of Disability Studies by providing a context in which to examine the meaning of differences within our legal and extrajudicial systems. It also may help us to see more clearly issues of power, privilege, and participation. I begin this Article with an examination of what Disability Studies is and what it is not. I then discuss Disability Studies as an academic field, including the field’s models and language. Next is an exploration of the emerging area of Disability Legal Studies and the relationship between disability and law, and a discussion of how

(1990); Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 Va. L. Rev., no. 2, 1993 at 461–516;. Winkfield F. Twyman, Jr., The Lightness of Critical Race Theory, Intellectual Conservative (Dec. 6, 2005), http://www.intellectualconservative.com/article4783.html (all giving background on Critical Race Theory). 7. See Martha Minow, Making all the Difference: Inclusion, Exclusion and the American Law 51(1990).

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Disability Legal Studies (not just a course in disability law here and there) has the potential to transform traditional legal education, the law, and perhaps society, too.

II. TOWARDS A DEFINITION OF DISABILITY STUDIES A. Towards a Definition of What Disability Studies Is Disability Studies is not one discipline, nor does it profess to subscribe to one particular theory, perspective, or approach to the study and teaching of disability. However, as a new academic field, Disability Studies does offer an innovative way to approach and view the production and perpetuation of disability as a social identity. First, Disability Studies is multi-disciplinary. As such, it borrows from the scholarship of many disciplines as well as occupies its own place between and among different disciplines. Disability Studies, therefore, not only adds to existing disciplines, but also creates new scholarship by posing questions about the place of disability in society that traditionally other disciplines have ignored. Second, Disability Studies generally refers to the examination of disability as a social, cultural, and political phenomenon, which counters the notion of disability as an inherent, immutable trait located in the person. Disability Studies sees disability as the result of socio-cultural dynamics that occur in interactions between society and people with disabilities. It rejects the view that disability is solely a medical problem or a personal tragedy. Instead, Disability Studies places the responsibility for reexamining and repositioning the place of disability within society not on the individual, but on society itself. Disability Studies, therefore, challenges the role of normalcy in society.8 Simi Linton, 8. For other discussions about what Disability Studies is and what it is not, see generally Steven Taylor, Why Teach Disability Studies? An Essay for Teachers, Ctr. on Human Policy (2004), http://www.disabilitystudiesfor teachers.org/files/WHY_TEACH_DISABILITY_STUDIES.doc; Gerben DeJong, Toward a Research and Training Capacity in Disability Policy, 14 Disability Studies Quarterly 152 (1994); Harlan Hahn, Disability Policy and the Problem of Discrimination, 28 Am. Behav. Sci. 293 (1985); Simi Litvak, Disability Studies vs. Disability Policy Studies 14 Disability Stud. Q. no. 2, Summer 1994, at 23; Sue Watson, Building a Disability Policy Studies Discipline within the Academic Field of Public Policy, 14 Disability Stud. Q. no. 2, Summer 1994, at 33; Irving Zola, Shaping an Interdisciplinary Field of Disability Studies: The Perspective of Sociology, 14 Disability Stud. Q. no. 2, Summer 1994, at 17; Diane N. Bryen &

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one of the early Disability Studies scholars, describes the field as follows: Disability Studies reframes the study of disability by focusing on it as a social phenomenon, social construct, metaphor, and culture utilizing a minority group model. It examines ideas related to disability in all forms of cultural representations throughout history, and examines the policies and practices of all societies to understand the social, rather than the physical or psychological, determinants of the experience of disability. Disability Studies both emanates from and supports the Disability Rights Movement, which advocates for civil rights and selfdetermination. This focus shifts the emphasis from a prevention/treatment/remediation paradigm, to a social/cultural/political paradigm. This shift does not signify a denial of the presence of impairments, nor a rejection of the utility of intervention and treatment. Instead, Disability Studies has been developed to disentangle impairments from the myth, ideology, and stigma that influence social interaction and social policy. The scholarship challenges the idea that the economic and social statuses and the assigned roles of people with disabilities are inevitable outcomes of their condition.9 A third characteristic of Disability Studies is that it sees “people with disabilities not as patients or charitable ‘cases’ but rather as human beings who exist as an important part of the social fabric.” 10 Within Disability Studies, the term disabled is defined

Sieglinde A. Shapiro, Disability Studies: What it is and Why it is Needed?, Temp. Univ. Faculty Herald 25(4), available at http://disabilities.temple.edu/ programs/ds/facultyherald.shtml. 9. Litvak, supra note 8, at 24 (citing a definition Linton communicated to her). Linton has further identified the field’s subject matter as follows: “Disability studies takes for its subject matter not simply the variations that exist in human behavior, appearance, functioning, sensory acuity, and cognitive processing but, more crucially, the meaning we make of those variations . . . . It is an interdisciplinary field based on a sociopolitical analysis of disability and informed both by the knowledge base and methodologies used in the traditional liberal arts, and by conceptualizations and approaches developed in areas of the new scholarship.” Simi Linton, Claiming Disability: Knowledge and Identity 2 (1998). 10. Catherine J. Kudlick, Disability History: Why We Need Another “Other”, 108 Am. Hist. Rev. 763, 775 (2003) (discussing the work of Rachael Adams on the history of “ideas toward the public display of human anomalies” in Sideshow USA: Freaks and the American Cultural Imagination (2001)).

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subjectively; as such, disability is “a political or a moral judgment, based not on anything about the individual in question so much as the viewer’s own perception and attitudes about the way society should function.”11 By defining disability as a social category rather than an individual characteristic, disability is no longer the exclusive domain of medicine, rehabilitation, special education, physical or occupational therapy, and other professions oriented toward the cure, prevention, or treatment of a disease, injury, or physical or mental impairment. A fourth characteristic of Disability Studies is that it stands in sharp contrast to the study of disability which focuses on the person with a disability as one with medical, physiological, anatomical, psychological and functional pathologies that originate in the body or mind of the person. 12 By contrast, Disability Studies embodies values based on viewing the person with a disability not as a victim of pathology, but as one who is limited more by social attitudes and environmental barriers than any inherent “defect” or “deficiency” within the person that must be remedied.13 Finally, by asserting that disability is a social construct derived from a history of stigmatization and exclusion, Disability Studies recognizes that knowledge of disability is to be found among people with disabilities themselves.14 Disability Studies thus uses the perspectives and experiences of people with disabilities as foundations for research and training.

B. Towards a Definition of What Disability Studies Is Not As discussed above, Disability Studies differs from traditional disability-related fields, such as occupational therapy, physical therapy, rehabilitation counseling, or social work, that generally train people to work with people with disabilities as patients or clients. Accordingly, Disability Studies is different from the study of disability in several significant ways.

11. Mary Johnson, Make Them Go Away: Clint Eastwood, Christopher Reeves, and the Case Against Disability Rights 46 (2003). 12. Simi Linton, Disability Studies/Not Disability Studies, 13 Disability & Soc’y 525, 529–31 (1998). 13. Litvak, supra note 8, at 24. 14. See Lennard Davis, Bending Over Backwards: Disability, Dismodernism, and Other Difficult Positions 139 (2002).

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First, in Disability Studies, the paradigm for viewing disability differs from that used in traditional disability-related fields. Disability Studies considers disability as a natural part of the human condition, not a defect or impairment of the person that must be eliminated, treated, or cured. It therefore shifts the emphasis away from a “prevention/treatment/remediation paradigm, to a social/cultural/political paradigm.” 15 Disability Studies rejects the perception of disability as a functional impairment that limits a person’s activities, and instead encourages the re-imagination of the place of disability within society.16 The Disability Studies paradigm aims to “fix” systems to be accessible to and usable by people with disabilities in contrast to the traditional paradigm that focuses on “fixing” the individual so that he or she can better fit into existing systems. A second way in which Disability Studies differs from traditional paradigms for viewing disability is that Disability Studies seeks to portray people with disabilities as individuals with dignity who are capable of contributing to society, albeit in their own, “different” ways. Disability Studies research is not limited, therefore, to empirical research or statistics about people with disabilities. Empirical studies that seek to count and categorize people with disabilities for the purpose of benefits eligibility, census counts, and other research related to service delivery, are not necessarily considered Disability Studies research. If such empirical research challenges the meaning of disability, the identity of the invididual charged with defining disability, and the ways in which society creates and perpetuates the category of disability, then such research may fall within the realm of Disability Studies. However, if such research focuses only on the person with a disability as an object of 15. Litvak, supra note 8, at 24 (citing a definition of Disability Studies provided by Simi Linton). 16. It is important to note here that the term “impairment” is not a neutral or fixed category. Impairments too can be socially constructed, although generally they are seen as relying on the medical model for a diagnosis of impairment. Lenny Davis observes, Particularly with illnesses that did not exist in the past, the plethora of syndromes and conditions that have sprouted in the hearts and minds of physicians and patients—conditions like attention deficit disorder, fugue states, pseudoneurotic schizophrenia, or borderline psychosis—we have to question the clear line drawn between the socially constructed “disability” and the preexistent and somatic “impairment.” Davis, supra note 14, at 23.

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study, without also seeking to bring forth the voice or viewpoint of the person with a disability, then such research will be criticized by Disability Studies scholars and disability rights activists as not Disability Studies research. While such empirical research about disability has a place in the academy, such research may be criticized for using disability as a category for comparison that focuses on people with disabilities in their particularity. When their particularity becomes the subject of the research, it is not empowering to people with disabilities.17 Of course, related problems are created when research on the general population excludes disability altogether because people with disabilities are considered too particular to be relevant to such studies.18 In either case, “the deficit paradigms remain, and the focus is on the individual as deviant subject, rather than on the social structure that labels difference as deviance and pathology.”19 In the more traditional studies of disability, the researchers retain the position as experts, with authority, while people with disabilities are merely the object of the research. The field of Disability Studies challenges this paradigm by viewing people with disabilities themselves as experts, in addition to the professionals who may know about various medical, legal, sociological, and educational conditions that have historically defined disabilities. It is

17. Linton, supra note 9, at 134–35. 18. See Paul K. Longmore & Lauri Umansky, Introduction in The New Disability History 1, 7 (Paul K. Longmore & Lauri Umansky eds., 2001) (noting that “[r]esearch and teaching about disability still appear primarily in . . . [the fields of rehabilitation, special education, medicine and related professions] and continue to be based on medical models.” Further, “when the liberal-arts fields broach the topic of disability, Simi Linton notes, ‘the deficit paradigms remain, and the focus is on the individual as deviant subject’”). Just because a certain type of disability research is called Disability Studies research does not automatically guarantee that it is consistent with the goals of Disability Studies. For example, as my colleague, Beth Ferri, and I have discussed, simply because research is qualitative does not mean that it is any more empowering and less objectifying of people with disabilities than empirical research. In fact, qualitative research, which involves interviews, personal stories, and data, can be seen as treating people with disabilities as objects even more than quantitative research. Qualitative research may feel even more intrusive and more like a violation of the dignity of a person with a disability than, for example, anonymous test scores or other kinds of empirical data that are not personally revealing. 19. Id. at 1, 7 (quoting Simi Linton, The Disability Studies Project: Broadening the Parameters of Diversity, in End Results and Starting Points: Expanding the Field of Disability Studies 323–25 (Elaine Makas & Lynn Schlesigner eds., 1996)).

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for this reason that emancipatory research has found a comfortable home within Disability Studies.20 A third way in which Disability Studies differs from more traditional views of disability is that it challenges the view of disability as tragic or pitiable. People who work with blind, deaf, autistic, developmentally disabled, and/or physically disabled individuals often see their clients’ or patients’ impairment as a great personal tragedy. Yet, people with disabilities do not necessarily see their own lives that way. For example, recent “quality of life” studies have revealed that physicians generally have more negative views of the quality of life that people with disabilities are able to enjoy than do people with disabilities themselves. One study shows that 86% of persons with spinal cord injuries said their own quality of life was, and would be in the future, average or better than average when compared to the population in general. Of the rehabilitation physicians, nurses, and technicians who treated them, however, only 17% held this view.21 In the same study, only 18% of emergency care providers imagined they would be glad to be alive if they were paralyzed, whereas 92% of the

20. Michael Oliver coined the phrase “emancipatory disability research” in 1992. Mike Oliver, Changing the Social Relations of Research Production, 7 Disability, Handicap, & Soc’y 101, 107 (1992) (discussing contemporary “calls to develop another paradigm for social research—what has variously been called critical enquiry, praxis or emancipatory research”). Emancipatory disability research emerged as a critique of mainstream disability research, which had generally ignored disabled people’s experiences and “the complexity of the process of disablement with reference to environmental and social forces.” Colin Barnes, “Emancipatory” Disability Research: Project or Process? Public Lecture in Glasgow, Scot. (Oct. 24, 2001), available at www.leeds.ac.uk/disability-studies/ .../glasgow%20lecture.pdf. See also generally Michael Oliver, Emancipatory Research: Realistic goal or impossible dream? in Colin Barnes & Geof Mercer, Doing Disability Research 15 (1997); Special Issue: Researching Disability, 7 Disability Handicap & Soc’y 99 (1992). However, emancipatory research has also been the subject of criticism by disability scholars. See, e.g., Ardha Danieli & Carol Woodhams, Emancipatory Research Methodology and Disability: A Critique, 8 Int’l J. Soc. Res. Methodology 281, 285–92 (2005) (advancing a number of critiques of emancipatory research, including its inability to dismantle the positivism and power structures of other research methods). 21. Kenneth A. Gerhart, et al., Quality of Life Following Spinal Cord Injury: Knowledge and Attitudes of Emergency Care Providers, 23 Annals of Emergency Med. 807, 810 (1994).

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people who are quadriplegics reported that they were glad to be alive.22 In another study, individuals who received services in a spinal cord injury rehabilitation unit were found to be similar to the general population in their level of depression. However, the unit staff (consisting of physicians, nurses, occupational therapists, physical therapists, social workers, psychologists, therapeutic recreation specialists, and spinal cord injury education specialists) consistently misjudged the patients’ level of depression and considered their patients’ depression to be much worse than the general population norm.23 Obviously, not everyone in the helping professions hold such negative views about people with disabilities and their quality of life. However, to the extent that such discordant views about the quality of life of people with disabilities exists between some members of the helping professions and those whom they serve, the effects on people with disabilities can be devastating, if not fatal. In the United States, for example, there exists the view that the life of a person with a disability is so meaningless that assisting them to die is acceptable. This dismal forecast of the quality of life of a person with a disability is so poor has, in fact, resulted in calls for legalized euthanasia. Such “right to die” laws have now been enacted in several states.24

22. Id. at 807. See also Dick Sobsey, Why we shouldn't blame the murders of disabled kids on lousy services, Not Dead Yet (March 2001), http://www.notdeadyet.org/docs/articles/sobsey0301.html (discussing the need for parents of disabled children to understand disability as not wholly negative in order to adequately care for those children). 23. Laura A. Cushman & Marcel P. Dijkers, Depressed Mood in Spinal Cord Injured Patients: Staff Perceptions and Patient Realities, 71 Archives of Physical Med. & Rehabilitation 191, 191 (1990). Another study found that “medical personnel viewed the use of a mechanical ventilator as a burden and a way to correct a deficiency in a person with a disability. The users, however, viewed the ventilators as positive and as assistive technology devices which simply helped them in their daily lives.” This phenomenon “is another example of service providers using a deficit/medical model of disability, which leads to a stigma at best and a denial of needed services (the ventilator) at worst. The denial would be based on the incorrect assumption that the users really did not want such a burden.” David Pfeiffer, et al., Attitudes Toward Disability in the Helping Professions, 23 Disability Stud. Q. 132 (2003), available at http://www.dsqsds.org/article/view/420/587 (internal citations omitted). 24. Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800-995 (2004); Washington Death with Dignity Act, Wash. Rev. Code 70.245.010 (2008).

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Those who see living with a disability as no life at all include Dr. Jack Kevorkian, a leader of the “Death with Dignity” movement in the United States. During a court proceeding in which he was charged with murder, Dr. Kevorkian stated that the “voluntary selfelimination of mortally diseased or crippled lives taken collectively can only enhance preservation of public health and welfare.” 25 Similarly, with respect to infants with disabilities, Dr. Peter Singer, a professor of bioethics at Princeton University, believes that the quality of life of some disabled infants may be so poor that it is morally right to kill them at birth.26 People with disabilities, however, have challenged such views. For example, in a 2003 cover story in the New York Times Magazine, entitled “Unspeakable Conversations,” Harriet McBryde Johnson, a disability rights lawyer and activist in her forties who recently died, responded to Singer. She wrote, “[Singer] thinks it would have been better, all things considered, to have given my parents the option of killing the baby I once was, and to let other parents kill similar babies as they come along, and thereby avoid the suffering that comes with lives like mine.” But, she continued, “the presence or absence of disability doesn’t predict quality of life.”27 Disability Studies stands clearly on the side of affirming the value of life with a disability. It embodies values based on viewing the person with a disability not as a victim or “charity case,” but instead as a participant in the world, as a survivor, and as one who is

25. Verbatim, State of Michigan for the County of Oakland, 7 Issues in L. & Med. 107, 109 (quoting Statement of Defendant at 11, People v. Kevorkian, No. 90-390363-AZ (Mich. Cir. Ct. Feb. 5, 1991)). 26. Peter Singer, Practical Ethics 184 (2d ed., 1995); see also Helga Kuhse & Peter Singer, Should the Baby Live? The Problem of Handicapped Infants. Oxford Univ. Press 74–97 (1985) (discussing the philosophical questions around killing infants with disabilities versus letting them die). The author concluded that “at least in the medical cases we have been considering, killing an infant is not worse than letting that infant die.” Id. at 96. 27. Harriet McBryde Johnson, Unspeakable Conversations, N.Y. Times Magazine, Feb. 16, 2003, available at http://www.nytimes.com/2003/02/16/ magazine/16DISABLED.html?pagewanted=all. See also Harriet McBryde Johnson, Too Late to Die Young: Nearly True Tales from A Life (2005) (Johnson’s memoir). In 2008, Johnson died in her sleep at the age of 50. In her memoir, she said it was the Jerry Lewis muscular dystrophy telethon that sent her the message, for the first time, that her neuromusclular disease would eventually kill her. Johnson drew national attention for her opposition to the “pity-based tactics” of the annual Lewis muscular dystrophy telethon, which she protested, together with thousands around the country, for the past 20 years. Id. at 47–75.

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limited by the social, legal, environmental, and attitudinal barriers created by the society in which he or she lives. People with impairments generally do not see themselves or their lives as tragic and not worth living. For example, Liat Ben Moshe, a Ph.D. student in Sociology and Disability Studies at Syracuse University, has written that her real-lived experience, including using a wheelchair, can be enriching and empowering. She explains that once one of her students told her that “she felt confused and did not know what to do; that she felt paralyzed.” Liat responded (to herself), “[F]unny; I am paralyzed, but I do know what to do. I stop listening to the student’s complaint and feel offended by the conversation.”28 A fourth way in which Disability Studies differs from studies of disability is that the background of the scholars and their audiences may be different. Historically, disability research has involved primarily doctors, nurses, rehabilitation counselors, physical therapists, occupational therapists, psychologists, psychiatrists, teachers, social workers and other members of what is considered the “helping” or “applied professions.” Disability Studies emerged from disciplines that previously had not specifically addressed the issue of disability as a social construct, such as architects, journalists, film makers, philosophers, lawyers, policy makers, artists, choreographers, writers, poets, historians, anthropologists, sociologists as well as some from the helping professions, too. Moreover, the audience of Disability Studies scholarship includes not only members of the helping professions, but also now people with disabilities themselves as well as policy makers and social reformers seeking to challenge society’s hierarchies that relate to the overall exclusion and marginalization of many groups, including people with disabilities. Accordingly, the scope and breadth of Disability Studies research and its audience is far more expansive and interdisciplinary than traditional disability scholarship per se. Finally, the outcomes of Disabilities Studies research are different from traditional research about disability. Studies about disability generally focus on the number of people with disabilities participating in certain programs or activities or an understanding of issues related to diagnosis, prevention, rehabilitation, treatment, and cure of a given impairment. By contrast, the outcome of Disability Studies research involves additional issues such as an understanding 28. Liat Ben-Moshe, “Lame Idea:” Disabling Language in the Classroom, in Building Pedagogical Curbcuts: Incorporating Disability into the University Curriculum 107, 111 (Liat Ben-Moshe et al. eds., 2005).

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of history, politics, economics, culture, and civil and human rights. The overarching purpose of Disability Studies research is to offer alternative ways in which society may view disability generally, as well as people who are disabled, as a group, and their experience of living with a disability, in their particularity.29 In short, Disability Studies recasts disability as a set of relations that determines a person’s place in society, and reframes the study of disability by focusing on it as a social phenomenon, social construct, metaphor, and culture. 30 The fundamental issue then becomes “not one of [the] individual’s inabilities or limitations, but rather, a hostile and unadaptive society.”31

C. Disability Studies as an Academic Field Disability Studies, as an academic field, is relatively new.32 In the United States, scholars in the field of sociology were among the first to embrace Disability Studies. In 1998, James I. Charlton wrote Nothing About Us Without Us: Disability Oppression and Empowerment, in which he gave a name to the movement, within the academy and beyond.33 In the UK, Michael Oliver’s The Politics of Disablement: A Sociological Approach in 1990 developed the idea of the social model of disability, and it remains one of the core texts of any Disability Studies program today.34

29. Irving Kenneth Zola, Introduction, 14 Disability Stud. Q. no. 2, Summer 1994, at 15, 16 (discussing Litvak, supra note 8). 30. As Simi Linton explains, “Disability Studies is an interdisciplinary field based on a socio-political analysis of disability and informed both by the knowledge base and methodologies used in traditional liberal arts, and by conceptualizations and approaches developed in areas of the new scholarship. Linton, supra note 9, at 2. 31. See John Swain, et. al., Controversial Issues in a Disabling Society ii (2003); see also Linda Ware, Writing, Identity and the Other: Dare We Do Disability Studies?, 52 J. of Tchr. Educ. 107, 107 (2001) (emphasizing the importance, in schools, of how “the context responds to disability”). 32. See Peter Monaghan, Pioneering Field of Disability Studies Challenges Established Approaches and Attitudes, Chron. of Higher Educ., Jan. 28, 1998, at A15; Harlan Hahn, The Potential Impact of Disability Studies on Political Science (as Well as Vice Versa), 21 Pol’y Stud. J. 740, 740 (1993) (examining “the implications of future directions in research on disability and political science”). 33. James Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment (1998). 34. Michael Oliver, The Politics of Disablement: A Sociological Approach (St. Martin’s Press 1990).

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In addition, the work of many scholars who have investigated aspects of the body and society are now re-read within the field of Disability Studies. Such writers include Thomas Szasz on mental illness;35 Leslie Fiedler36 and Bob Bogdan on freaks;37 Mikhal Bakhtin on the grotesque;38 Jacques Derrida on blindness;39 Judith Butler on anorexia; 40 Sander Gilman on disease; 41 David Rothman on Asylums; 42 and Foucault, 43 who has written on the postmodern subject as a “ruse to disguise the hegemony of normalcy.”44 Erving Goffman and other social scientists who examine stigma also have found a new home in Disability Studies.45 According to Goffman, stigma reflects the values of the dominant group that determines which human differences are desired and which are feared, devalued, or undesired. 46 To the extent that the

35. Thomas Szasz, The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (rev. ed. 1974); Psychiatric Justice (2d ed. 1988). 36. Leslie Fiedler, Freaks: Myths and Images of the Secret Self (1978); Tyranny of the Normal: Essays on Bioethics, Theology & Myth (1996). 37. Robert Bogdan, Freak Show: Presenting Human Oddities for Amusement and Profit (1988). 38. Michael M. Bakhtin, Rabelais and His World (Hélène Iswolsky trans., Indiana University Press 1993) (1941). 39. Jacques Derrida, Memoirs of the Blind: The Self-Portrait and Other Ruins (Pascale-Anne Brault & Michael Naas trans., 1993). 40. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990); The Psychic Life of Power: Theories in Subjection (1997). 41. Sander Gilman, Seeing the Insane (1982). 42. David Rothman, The Discovery of the Asylum, Social Order and Disorder in the New Republic (1971). 43. Michael Foucault, Birth of the Clinic: An Archaeology of Medical Perception (1973); Madness and Civilization: A History of Insanity in the Age of Reason, (R. Howard trans., Tavistock 1965) (1961). 44. Davis, supra note 14, at 30. 45. See Lerita M. Coleman, Stigma: A Enigma Demystified, in Disability Studies Reader 141, 141–42 (Lennard J. Davis, ed., 2d ed. 2006) (discussing Goffman’s work on stigma in the context of Disability Studies). See also Erving Goffman, Asylums: Essays on the Condition of the Social Situation of Mental Patients and Other Inmates (1961) and Stigma: Notes on the Management of Spoiled Identity (1963). 46. Goffman, Stigma, supra note 45, at 3 (a stigmatized person is “reduced in our minds from a whole and usual person to a tainted, discounted one . . . . The term stigma [refers] to an attribute that is deeply discrediting, but it should be seen that a language of relationships, not attributes, is really needed.”). An example of this phenomena is a town in Martha’s Vineyard, (off the coast of Massachusetts) in which nearly all the residents were Deaf and which exemplifies the relevance of social context to stigma. Early settlers in the town of Chilmark on Martha’s Vineyard carried a gene for deafness, and over years of

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stigmatization that Goffman describes is also a consequence of social comparisons that can change depending on the social context, his writings are of particular interest to Disability Studies scholars today.47 Even those who work on issues of identity politics have begun to embrace Disability Studies, as well as see it as a way to discuss identity beyond identity politics. In the study of identity, the establishment of identity is seen as the first step toward resistance to oppression. Accordingly, groups based on race and gender demanded identity, visibility, and identification. Blackness and queerness became positive identities in the face of negative and oppressive regimes. But to some, a second stage of this process is now underway in the United States, focusing less on group identity and more on how to find (and value) diversity within the group.48 Disability Studies may provide leadership in this process.49 To move beyond the first stage of identity politics does not mean the disappearance of differences, however. In Disability Studies, as in other fields, moving beyond identity politics may mean affording recognition and acceptance of disability as an identity; not only as a fixed category, but also as a category that is malleable and that may expand, especially as the population ages.50 In short, as a new academic field, Disability Studies is open to all disciplines and invites them to examine difference as part of the marriage, generation after generation was born with hearing loss. At one point, there were so many deaf people that the residents developed their own sign language, known as Martha's Vineyard Sign Language (MVSL) that eventually merged with mainland signs to form American Sign Language. In this town, no stigma was attached to Deafness; indeed, it was the norm. See generally, Nora Ellen Groce, Everyone Here Spoke Sign Language: Hereditary Deafness on Martha’s Vineyard (1985) (discussing the effects of the prominence of Deafness in the town). 47. One work used in this way is Goffman’s Asylums: Essays on the Condition of the Social Situation of Mental Patients and Other Inmates, supra note 45. This book is also used by Disability Studies scholars who challenge the need for institutionalization as a legitimate place for services delivery to people with disabilities. 48. See Davis, supra note 14, at 10–11. 49. See Lennard J. Davis, The End of Identity Politics and the Beginning of Dismodernism, in Disability Studies Reader, supra note 45, at 231, 233; Marta Russell, Beyond Ramps: Disability at the End of the Social Contract 231–32 (1998); Tobin Siebers, Disability Studies and the Future of Identity Politics, in Identity Politics Reconsidered 10, 17 (Linda Alcoff & Satya P. Mohanty eds., 2006). 50. See supra text accompanying notes 155–160.

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larger human experience. Even within Disability Studies, there is little agreement about the models and language of disability, as explained below.

1. The Models of Disability In addition to the theoretical challenges posed by Disability Studies, several models of disability have emerged as part of the development of Disability Studies.51 Some scholars see each of these models as part of the same overall model or view of disability. To these scholars, differentiating between different models of disability is less important than the critical viewpoint they do or do not espouse. Other Disability Studies scholars value some models and dismiss others as limiting and unresponsive to the real-lived experiences of people with disabilities. Despite such disagreements about the boundaries between and among these models of disability, most Disabilities Studies scholars do agree that viewing disability solely through the medical model is no longer acceptable.

a. Critique of the Medical/Individual Model According to the medical model, a person with a disability is seen as sick and in need of treatment, rehabilitation, a cure, or charity. This model of disability locates the “problem” within the individual rather than in society.52 It also places responsibility on the

51. Michael Oliver has warned against developing too many models of disability. As he has written, “if we are not careful we will spend all of our time considering what we mean by the medical model or the social model, or perhaps the psychological or more recently, the administrative or charity models of disability,” and stresses that “[t]hese semantic discussions will obscure the real issues in disability which are about oppression, discrimination, inequality and poverty.” Michael Oliver, The Individual and Social Models of Disability, Paper Presented at the Joint Workshop of the Living Options Group and the Research Unit of the Royal College of Physicians 2 (July 23, 1990), available at http://www.leeds.ac.uk/disability-studies/archiveuk/Oliver/in%20soc%20dis.pdf; but see also Oliver, The Politics of Disablement, supra note 34, at 2–6 (discussing the importance of certain definitions and critiquing the medical approach to defining disability); Michael Oliver, Understanding Disability, From Theory to Practice 30 (1996) (discussing the “individual” and “social” models of disability). 52. Although the medical model seeks to define disability by objective medical criteria and diagnoses, at least one scholar has argued that it does not objectively define disability and that such medical concepts are used in the service of other interests that result in the constitution of disability as a social category. See Deborah A. Stone, The Disabled State 107–117 (1984).

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individual to change or to be “rehabilitated” or “cured” in order to fit into society, since it sees the problem of the individual “stemming from the functional limitations or psychological losses which are assumed to arise from disability.”53 As a result of viewing disability through a medical lens, societies have erected large institutions to protect and exclude people with disabilities from society. Today, Disability Studies scholars and disability activists alike reject the pathologization of certain behaviors that looks solely to the medical establishment for solutions. As Paul Longmore and Lauri Umansky have written, the medical model “personalizes disability, casting it as deficit located within individuals that requires rehabilitation to correct the physiological defect or to amend the social deficiency.”54 Michael Oliver, a noted British Disability Studies scholar, rejects the medical model in favor of the “Individual Model.” For Oliver, the medical model is just one part of a larger individual model, which rejects the medicalization of disability, as well as the “personal tragedy theory of disability,” which suggests that disability is some terrible chance event that occurs at random to unfortunate individuals.” He sees disability as a social state and not a medical condition. 55 The result of relying solely on a medical model of disability, according to Oliver and others, is that society itself is let off the hook. Society has no obligation to look at how it, itself, is structured; how it creates barriers to inclusion; and how it shares in the responsibility to eliminate the legal, attitudinal, and physical barriers that exclude people with disabilities from our schools, workplaces and neighborhoods. As a result, Disability Studies scholars have generally dismissed the medical model of disability and replaced it with the minority or social model of disability, both of which place responsibility for reexamining and repositioning the place of

53. Oliver, supra note 51, at 3. 54. Longmore & Umansky, supra note 18, at 7. Simi Linton has observed that on rare occasions, when the liberal arts fields broach the topic of disability, “the deficit paradigms remain, and the focus is on the individual as deviant subject, rather than on the social structures that label difference as deviance and pathology.” Linton, supra note 19, at 7. 55. As Oliver has written: “Why then is the medicalisation of disability inappropriate? The simple answer . . . is . . . disability is a social state and not a medical condition.” Oliver, supra note 51, at 3. As a result, “medical intervention in, and more importantly, control over disability is inappropriate. Doctors are trained to diagnose, treat and cure illnesses, not to alleviate social conditions or circumstances.” Id.

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disability not on the individual (and his or her doctor or treating professional) but on society. Beyond that, great variation exists regarding how Disability Studies scholars approach the study of disability itself.56 Some Disability Studies scholars see disability as a label and a social construct, while others view disability in terms of group status, identity and culture, or a combination of all of these.57

b. Minority Group Model of Disability In contrast to the medical model of disability, stands the minority group model of disability, which views people with

56. Another approach to disability may be attributed to Wolf Wolfensberger, a social scientist, who taught at Syracuse University for many years, and is largely responsible for the principle of “normalization.” See Wolf Wolfensberger, et. al., The Principle of Normalization in Human Services 28 (1972) His approach still exists today and focuses on creating environments for people with learning and intellectual disabilities that are as “culturally normative as possible.” Id. at 27. What follows from this view (which does not necessarily call for an end to institutionalization), is the idea that the human service “industries,” including teachers, social workers, and rehabilitation counselors, have created a large industry the growth of which depends on a steady increase in the number of people who are labeled as disabled, devalued, and dependent on the everincreasing human services industry consisting of health, social welfare and services. Later in his career, Wolfensberger shifted his focus from normalization to the view of disability as a social role valorization, which he “defined as the ‘creation, support, and defence of valued social roles for people who risk devaluation.’” Colin Barnes, et. al., Exploring Disability: A Sociological Introduction 74 (1999) (citing Wolfensberger’s work) [hereinafter Exploring Disability]. 57. One author has observed, Without a conception of disability as a social construct, explanations of the results of modern “disability legislation” are incomplete. What is not accounted for is the fact that laws dealing with handicapped people reflect not only the political problems posed by conflicting interest groups, but also the views that biological deficiency and that handicapped people deserve (perhaps desire) a place outside of the mainstream of society. Furthermore useful legislative evaluations need to take into account the processes by which people who deviate from accepted physical norms are devaluated and segregated and, as a result, disabled. Claire H. Liachowitz, Disability as a Social Construct: Legislative Roots 1 (1988). See also Minow, supra note 7, at 51 (noting that we generally adopt an unstated point of reference when assessing disabled persons and that the point of reference typically expresses perspectives of the majority or of power-holders within society).

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disabilities as an oppressed and “disadvantaged” minority group.58 According to this model, which was originally identified by British Disability Studies scholars, people with disabilities are victims of indignities, discrimination, and exclusion from society in much the same way as are other marginalized groups of people based on race, gender, or sexual orientation. Accordingly, the Disability Rights Movement, like the Civil Rights Movement and the Women’s Movement before it, focuses on issues of identity and power relationships. The minority model supports this rights-based view of disability. It “provides the collective context for political identification; it involves processes which challenge views of disabled people as incapable, powerless and passive; and it establishes disabled people as the experts on disability and disabled people’s definitions as the most appropriate approaches to disability, rather than the traditional domination of professionals.” 59 However, membership in the group of people with disabilities in society necessarily imposes a non-majority, second class, “other” status on people with disabilities, which shapes its members’ life experiences.60 It is undeniable that throughout their history, people with disabilities, as a group, have been mistreated and stigmatized as “the other.” They have been denied the right to vote, 61 locked away in

58. See Harlan Hahn, Towards a Politics of Disability: Definitions Disciplines and Policies, 22 Soc. Sci. J. 87, 94 (1985) (internal citations omitted) (discussing the “socio-polical” definition of disability, and noting, “[t]he increased emphasis on legal rights has led to a growing recognition that physically disabled people comprise a minority group with many of the same problems as other disadvantaged ethnic or racial segments of the population.”). According to Jeremy Schipper, scholars and activists “question the assumptions of the medical model of disability and propose other models, such as the ‘minority model.’” Jeremy Schipper, Disability Studies and the Hebrew Bible: Figuring Mephibosheth in the David Story 7 (2006). He explains that, under the minority model, people with disabilities are viewed as disadvantaged “members of an oppressed group subjugated by able-bodied ideologies encoded into larger social structures.” Id. 59. Tom Shakespeare, Disability, Identity and Difference, in Exploring the Divide 94, 102 (Colin Barnes & Geof Mercer eds., 1996), available at http://www.leeds.ac.uk/disability-studies/archiveuk/Shakespeare/Chap6.pdf. 60. See Hahn, supra note 58, at 93–94 (noting society’s historical failure to recognize the human and civil rights of the disabled and to include disabled persons in the political community). 61. See Michael Waterstone, Fundamental Rights and Voting, 56 Ala. L. Rev. 793, 825–28 (2005) (noting practical obstacles to persons with physical disabilities voting and the historical formal disenfranchisement of persons with mental disabilities); Arlene S. Kanter & Rebecca Russo, The Right of People with Disabilities to Exercise Their Right to Vote under The Help America Vote Act, 30

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remote institutions where they have been excluded from society and subjected to neglect and abuse.62 History is replete with numerous incidents of assault, rape, and even murder of people simply because they were considered disabled.63 As a group, people with disabilities also are less wealthy, less independent, less educated, and less likely to reach their full potential than other disadvantaged groups. In the United States, for example, 46% of adults with disabilities live in households with a total income of less than $25,000.64 In the area of employment, more

Mental and Physical Disability L. Rep. 852, 852 (2006) (“[F]or many people with disabilities, this right to vote has remained illusory.”). 62. Indeed, the Americans with Disabilities Act was originally enacted in 1990 to address widespread discrimination against people with disabilities in nearly every aspect of life, as well as their history of institutionalization. See 42 U.S.C. § 12101(a)(3) (2006) (finding persistent discrimination against individuals with disabilities); see also Ruth Colker, The Law of Disability Discrimination 10– 11, (6th ed. 2007) (states had different means if “dealing” with individuals with disabilities, including institutionalization); see also Burton Blatt & Fred Kaplan, Christmas in Purgatory: Photographic Essay On Mental Retardation (1974) (available from SU Center on Human Policy, Law, and Disability Studies, Syracuse, NY) (photographically documenting conditions in mental institutions); David J. Rothman & Sheila M. Rothman, The Willowbrook Wars (Harper & Row 1984) (discussing the court case involving over 5,000 people institutionalized in the Willowbrook asylum). For a more recent discussion of institutionalization in countries other than the U.S., see generally Deinstitutionalization and People with Intellectual Disabilities: In and Out of Institutions (Rannveig Traustadóttir & Kelly Johnson eds., 2005), as well as reports published by Mental Disability Rights International, an organization based in Washington, D.C. and dedicated to promoting human rights and full inclusion of people with disabilities, worldwide, particularly children and adults confined in institutions. Mental Disability Rights Int’l, List of Reports, http://www.mdri.org/country-projects.html (last visited November 7, 2010). 63. See Colin Barnes, A Legacy of Oppression: a History of Disability in Western Culture in Disability Studies: Past, Present and Future 3–24 (L. Barton & M. Oliver eds., 1997) (noting the systematic murder of disabled persons in Nazi death camps), available at www.leeds.ac.uk/disability-studies/archiveuk/index; Longmore & Umansky, supra, note 18, at 17 (noting the prevalence of abuse, discrimination and oppression of disabled persons throughout history); see also Jacqueline Vaughn Switzer, Disabled Rights: American Disability Policy and the Fight for Equality 30–44 (2003) (highlighting the historic mistreatment of disabled persons, including movements toward forced sterilization of disabled persons); Sobsey, supra note 22 (discussing several murders as related to the victims’ disabilities). 64. Nat’l Org. on Disability, 2004 NOD/Harris Survey 22, available at http://www.nod.org/assets/downloads/NOD-Harris-Results-2004.pdf; see also Switzer, supra note 63, at 178 (“A 2000 survey found that 29% of disabled persons

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than two-thirds of working age Americans with disabilities are not working, 65 even though 63% of those polled would prefer to be working.66 Only one in five working age adults with disabilities works full-time, while 10% work part-time.67 By 2007, the situation had not improved markedly. Only 21.2% of working-age persons with disabilities were employed in full time/full year jobs, compared to 56.7% for non-disabled persons, and the median annual salaries for disabled workers were 16% less than those for non-disabled workers. 68 People with the most stigmatized type of impairments, such as cognitive disabilities or the label of mental illness, as well as women, people of color, and gay, bisexual or transgendered people with disabilities, fare even worse. From an educational perspective, people with disabilities are faring slightly better than they have in the past. However, in the U.S. they remain far behind their non-disabled peers. A much larger percentage of students with a range of disabilities have not completed high school (25%) than those without disabilities (12%).69

had a household income of $15,000 or less, compared to 10% of those without disabilities.”). 65. Switzer, supra note 63, at 177. 66. Nat’l Org. on Disability, supra note 64, at 8. 67. Id. at 7. 68. W. Erickson & C. Lee, 2007 Disability Status Report: The United States, Cornell University Rehabilitation Research & Training Ctr. on Disability Demographics & Statistics, http://www.ilr.cornell.edu/edi/disabilitystatistics/ StatusReports/2007-HTML/2007-StatusReport_US.html?CFID=14653252&CFTO KEN=97062245 (report prepared by Cornell University’s Rehabilitation Research and Training Center on Disability Demographics and Statistics in 2007 that used the U.S. Census Bureau’s American Community Survey (ACS) data). See also a report by Shawn Fremstad of the Center for Economic and Policy Research that concluded in September 2009 that “[d]isability is both a fundamental cause and consequence of income poverty.” He finds that approximately “50% of all workingage adults who experience income poverty have a disability . . . nearly 66% of adults experiencing long-term income poverty have a disability . . . [and] individuals with disabilities experience income poverty more than those in any other single minority, ethnic, or racial group.” Fremstad also found that people with disabilities are disadvantaged by the cost of their disability, which “rise[s] as the severity of the disability” does. Am. Bar Ass’n Comm’n on Mental & Physical Disability Law, Disability Statistics Report 3 (2010) (internal citations omitted). 69. Bryen & Shapiro, supra note 8, para. 4. The U.S. Department of Education has found in its National Longitudinal Transition Study-2, which documents the experiences of a national sample of students with disabilities over several years as they moved from secondary school into adult roles, shows that the incidence of students with disabilities completing high school rather than dropping out increased by 17 percentage points between 1987 and 2003. During

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Moreover, even since the enactment of the Americans with Disabilities Act (ADA), in 1994, approximately 40% of Americans with disabilities believe that things have not gotten much better for them despite the passage of the ADA.70 In order to change this situation and improve the lives of people with disabilities within society, Disability Studies advocates who subscribe to the minority view seek to bring forward the voices of people with disabilities, in much the same way that scholars have provided avenues for the voices of other oppressed and unrepresented minorities. A tension exists, however, between the minority group model and other models of disability. Under the minority group model, the goal of disability scholarship (and activism) is to provide people with disabilities the same rights, privileges, and benefits enjoyed by other groups in society. In the United States (and in other countries as well), we now have laws that provide accommodations in the workplace, increased benefits for people with disabilities who cannot work, and civil rights laws guaranteeing equal access to services, education, public accommodations, housing, employment, and other benefits and privileges afforded to people who are not disabled. 71 The tension grows, however, as claims for equal treatment reinforce the notion of the “deserving” person with a disability, which in turn perpetuates

the same period, their postsecondary education participation more than doubled to 32%. In 2003, 70% of students with disabilities who had been out of school for up to two years had paying jobs, compared to only 55% in 1987. U.S. Dep’t of Educ., Thirty Years of Progress in Educating Children with Disabilities Through IDEA (2005), http://www2.ed.gov/policy/speced/leg/idea/history30.html. Despite this progress, a Cornell University study reported that only 12.5% of working-age persons with disabilities held a Bachelor’s degree or higher, compared to 30.8% of non-disabled persons. Erickson & Lee, supra note 68, at 42. 70. See, e.g., Russell, supra note 49, at 111. In this book, Russell argues that the hope of the ADA for social and economic parity for people with disabilities has not been realized because of the shift in American society generally, from a “people-centered society” to a “corporate-centered society.” See also Samuel R. Bagenstos, Law and The Contradictions of the Disability Rights Movement 116, 117–19 (2009) (detailing statistical decreases in the percentage of people with disabilities who participate in community activities and describing the decline in the employment position of Americans with disabilities since the ADA). 71. For a discussion of the development of disability laws in different countries, even before the adoption of the 2007 UN Convention on the Rights of People with Disabilities, see Arlene S. Kanter, The Globalization of Disability Rights Law, 30 Syracuse J. Int’l L. & Comm. 241, 248–52 (2003).

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the location of disability within the person, rather than in society.72 Although the minority group model seeks to provide greater political legitimacy to people with disabilities, as a group, it also runs the risk of failing to challenge the “organizing structures and values of a disabling society.” 73 As such, according to Tom Shakespeare, a leading Disability Studies scholar from England, the minority group model may focus “on power politics and identity politics, while not necessarily problematising disability itself.”74

c. Social Model of Disability Some scholars, such as Lennard Davis, consider the social model and minority model interchangeable. Davis considers the social model as the U.S. version of the British minority group model that distinguishes between impairment, “the physical fact of lacking an arm or leg . . . [and disability] as the social process that turns an impairment into a negative by creating barriers to access.”75 Other scholars see the social model as expanding upon the minority group model.76 For these scholars, the social model sees disability as a social

72. See Shakespeare, supra note 59, at, 97, 108–110 (discussing the “tensions between a focus on removing disabling barriers, and opposing the oppression of disabled people as a minority group” and the danger of essentializing disabled people’s identity based on their membership in this minority group). 73. Exploring Disability, supra note 56, at 72. See also Helen Liggett, Stars Are Not Born: An Interpretative Approach to the Politics of Disability, 3 Disability, Handicap & Soc’y 263, 271–72 (1988) (discussing a number of critiques of the minority model). 74. Shakespeare, supra note 59, at 97. James Charlton too sees the collateral consequences of poverty and historically-imbalanced power structures as creating people with disabilities as an oppressed minority. See Charlton, supra note 33, at 21–36; see also Harlan Lane, The Mask of Benevolence 103–107 (1992) (analogizing the lack of state recognition of American Sign Language to the treatment of other linguistic minorities worldwide and the perpetuation of their poverty and marginalization). 75. Davis, supra note 14, at 12. Irving Kenneth Zola, who defines impairment as a loss of sight, hearing, mobility, etc., argues that an impairment becomes a disability when the society creates environments with barriers; “[f]or example, a person using a wheelchair is only disabled if there are no ramps.” Id. at 41. 76. Colin Barnes, from the Centre for Disability Studies, University of Leeds, England argues that the relationship between disability and rehabilitation is best explained in terms of three distinct but related definitions of disability: the orthodox “individualistic” medical definition, the more liberal “inter-relational” account, and the “radical” socio/political interpretation commonly referred to as

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construct and as part of the human experience. They offer “a strategy of barrier removal, and education to remove prejudice, with the goal of inclusion.”77 But unlike the minority group model, the social model of disability focuses less on the relationship between the group of people considered disabled and other groups and more on “disability as a relationship between people with impairments and a discriminatory society.” 78 Nonetheless, the way that both the minority group model and the social model view disability stands in sharp contrast to the medical/individual model of disability.79 The social model places the responsibility squarely on society (and not on the individual with a disability) to remove the physical and attitudinal barriers that “disable” people with various impairments, and prevent them from exercising their rights and fully integrating into society. In other words, a person’s impairment does not diminish the right of that person to exert choice and control about his or her life or to fully participate and contribute to communities through full integration into the economic, political, social, cultural, and educational mainstream of society. By relying on the social model of disability, it is impossible to say that any person is “unable” or “unqualified” to exercise rights or to participate fully in society.

the “social model of disability.” He concludes with a brief focus on alternative strategies generated by disabled people and their organizations. See Colin Barnes, Rehabilitation for Disabled People: A ‘Sick’ Joke?, 5 Scandinavian J. of Disability Res. 7, 7–23 (2003), available at http://www.independentliving.org/ docs6/barnes2003a.html. Others argue that the social model is in fact an umbrella term for many variations within Disability Studies. David Pfeiffer, for instance, has identified nine different models of Disability Studies, including: the social constructionist, the social, the impairment, the oppressed minority, the independent living, the post-modern, the continuum, the human variation, and the discrimination versions. David Pfeiffer, The Philosophical Foundations of Disability Studies, 22 Disability Stud. Q. 3 (2002), available at http://www.dsqsds.org/article/viewFile/341/430. See also Colin Barnes, The Social Model of Disability: A Sociological Phenomenon Ignored by Sociologists? in The Disability Studies Reader – Social Science Perspectives 65, 66–78 (Tom Shakespeare ed., 1998) (further elaborating on multiple models of disability); Patrick Fougeyrollas & Line Beauregard, Disability: An Interactive Person-Environment Social Creation, in Handbook of Disability Studies (Gary L. Albrecht et al. eds., 2001) 171, 177–78 (discussing generally the social model of disability and its broad acceptance in the international movement). 77. Shakespeare, supra note 59, at 97. 78. Id. 79. The social model is an umbrella term for many variations within Disability Studies. See Barnes, supra note 76, at 65; Fougeyrollas & Beauregard, supra note 76, at 171.

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Instead, it is affirmatively the obligation of society to change or adapt its services, programs, facilities, systems, and other entities, so that all people can exercise their rights to the best of their ability, regardless of their particular impairment.80 But if disability itself is socially constructed, as the social model proposes, what is the value of the real-lived experiences of people with disabilities? That is a question commonly posed to proponents of the social model of disability. The social model of disability does not go so far as to negate the existence of disability or to deny the existence of a person’s impairment, pain, suffering, or need for treatment and rehabilitation. Instead, the social model sees the social meaning of the impairment as the source of the person’s difference and oppression rather than the person’s impairment itself. Harlan Hahn, a noted sociologist has labeled this phenomenon “existential anxiety,” which occurs when we obscure “our” own deviations from the norm itself.81

80. The social model also emphasizes the difference between “disability” and “impairment.” A person may have an impairment (vision, hearing, physical, mental), but, according to the social model, it is society that “disables” the person by erecting barriers to the person’s inclusion in society. But one could argue that, like “disability,” an impairment, too, is socially constructed. The definition of disability, developed by the World Health Organization in 1980, distinguishes between impairment, which is an anatomical loss, and disability, which is a restriction resulting from the impairment. See World Health Org., International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease 47, 143 (1980). This classification was subsequently adopted by the United Nations. G.A. Res. 48/96, ¶ 20, U.N. Doc. A/RES/48/96 (Dec. 20, 1993); see also Oliver, The Individual and Social Models of Disability, supra note 51, at 2 (discussing the social model of disability as one that “does not deny the problem of disability but locates it squarely within society”). 81. See Allan H. Macurdy, Commentary: Disability Ideology and the Law School Curriculum, 4 B.U. Pub. Int. L. J. 443, 450 (1995) (citing Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. Soc. Issues 39 (1988)). Macurdy describes Hahn as “a sociologist who has examined societal perceptions of disability and has coined the term “existential anxiety” to describe this phenomenon.” Id. at 450 n.17. Macurdy expanded on this point when he wrote, To begin to understand how law supports the subordination of individuals with disabilities, we need first to acknowledge the social construction of disability. For example, a job applicant who uses a wheelchair is not hired because of a false perception that she is not able to do the job because of some cognitive or communicative limitations; prospective parents with disabilities are told that for them to have children would be

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d. The Cultural Model of Disability Related to the social model of disability is the cultural model of disability. This model incorporates the theory of “subjection,” based on the writings of Foucault, who views disability as a category of social policy.82 This “subjection” approach “shifts the attention from the person with the impairment to the statutory or policy processes which construct him/her as officially disabled.” 83 It also offers an alternative, post-modern framework, to promote a more fragmented, decentered sense of self, which accepts multiple, conflicting identities. The application of this theory to disability results in the view that the definition of disability itself is “unstable and open to contestation,” rejecting externally imposed definitions of disability and replacing them with a view of disability that “occurs alongside

unfair to those children; children with disabilities are excluded from play groups, or are taught not to expect—through actions as well as words—a future of careers, relationships and purpose. Why are these examples “constructions?” First, because each is an inaccurate representation of the realities of specific disabilities or of what the lives of individuals with disabilities are like. Further, these experiences create and are created by a myth which expresses an ideal of “ableness” that is hopelessly utopian. If we believe that most people can be perfectly able—they look like us, they can do whatever we can, and they can't do whatever we can't—we have come to see the world as if it were that ideal. Once the world is defined in such ideal terms, anyone who appears to deviate is defined as being out of the world or, more precisely, is positioned below those who appear to embody the ideal. Adherence to this ideal perpetuates an unequal value allocation. That is, those in a subordinate position are less important, less legitimate and less valuable. This is hierarchy, constructed around a reified norm of the ideally able-bodied and able-minded individual, and it requires that we obscure “our” own deviations from the norm itself. As in race and sex oppression, the hierarchies of human value that subordinate individuals with disabilities are the result of an ideology of “difference” or “otherness.” Id. See also Kimberle Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1373–74 (1988) (referring to the social construction of white supremacy in America, Crenshaw writes that “[w]hites became associated with normatively positive characteristics” while “[b]lacks became associated with the subordinate, even aberrational characteristics”). 82. See generally Foucault, Madness and Civilization, supra note 43 (discussing the concept of madness as a social construct). 83. Shakespeare, supra note 59, at 98.

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multiple other identities (such as sexuality, race, ethnicity, socioeconomic status, etc.).” 84 According to Deborah Stone, whose writings rely heavily on Foucault, disability became a separate social category that drew a distinction between the deserving and undeserving poor, beginning with the enactment of the nation’s welfare laws. According to her, such categorization continues to permeate social policy today.85 Writers such as Susan Sontag, 86 Simi Linton, 87 Rosemarie Garland-Thomson,88 Tom Shakespeare,89 David Mitchell and Sharon Snyder,90 Marion Corker,91 and others subscribe to the social model of disability but have added to it by using disability as part of their respective notions of cultural representation. Drawing on Foucault’s concept of discursive formations, the critique of disability as a cultural category challenges popular representations of people with 84. Mark Sherry, Disability and Diversity: A Sociological Perspective 75 (2008). 85. See Stone, supra note 52, at 55 (examining the social construction of the category of disability and its effect on the lives of people with disabilities by providing a detailed account of the rise of disability as an administrative category for welfare laws in England, Germany and the United States. See also Exploring Disability, supra note 56, at 46 (citing Robert Scott, The Making of Blind Men 119 (1969) (discussing the socialization of people with disabilities to behave according to social stereotypes of disabled persons)). 86. See generally Susan Sontag, Illness as Metaphor (1978); Susan Sontag, Illness as Metaphor/AIDS and its Metaphors (1991) (discussing the metaphors surrounding social understanding of various illness). 87. See generally Linton, supra note 9 (discussing disability studies and the possibilities inherent in it for people to shape the meaning of disability). 88. See generally Rosemarie Garland Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature (1997) (tracing the defining of disability in the U.S. in various social, historical, and artistic contexts). 89. See generally Tom Shakespeare, “Cultural Representation of Disabled People: Dustbins for Disavowal?” 9 Disability & Soc’y 283 (1994) (examining both cultural representations of impairment and disability, particularly as the “other”). 90. See generally The Body and Physical Difference: Discourses of Disability (David T. Mitchell & Sharon L. Snyder eds., 1997) (a collection of essays examining a variety of representations of disability in order to introduce thinking about disability into the humanities and to reimagine people with disabilities as the audience, rather than simply the subject, of work about disability); Sharon L. Snyder & David T. Mitchell, Cultural Locations of Disability (2006) (tracing eugenic thinking around disability and the consequences for the social understanding of disability in later periods). 91. Marion Corker, Deaf and Disabled or Deaf Disabled (1998) (examining two disparate frameworks in which deafness is understood).

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disabilities as inferior, abnormal, and worthless by unpacking the cultural patterns that produce those images in popular culture, literature, or in film.92 As Colin Barnes has observed, “[t]o encourage the growth of a disability culture is no less than to begin the radical task of transforming ourselves from passive and dependent beings into active and creative agents for social change.”93 Film94 and literature95 have been used as a medium through which to analyze such representations of disability. One such example is in Neil Marcus’ illuminating words: “[d]isability is not a ‘brave struggle’ or ‘courage in the face of adversity’ . . . disability is an art. It’s an ingenious way to live.”96 Linda Ware, a Disability Studies educator, has written: “[w]hen disability is considered through a cultural lens, ability is interrogated in much the same way that gender is interrogated by feminist studies scholars and Whiteness is interrogated by ethnic studies scholars.”97 Ware goes on to say that if educators accept the challenge of reimagining disability in society, it “will necessitate new alliances with colleagues in the humanities,”98 and, I would add, throughout the university community.

92. See Shakespeare, supra note 59, at 98 (discussing the theory of “disability as a cultural category”). Shakespeare “suggested [in earlier research] that the processes of denial and projection are involved in the cultural construction of disability.” Id. 93. Colin Barnes, Professor of Disability Studies, Univ. of Leeds, Effecting Change; Disability, Culture and Art?, Paper Presented at Finding the Spotlight Conference, Liverpool Institute for the Performing Arts (May 28–31, 2003) (quoting K. Morrison & V. Finkelstein, Culture as Struggle: Access to Power, in Disability Arts and Culture Papers 11–12 (S. Lees ed., 1992) (on file with author). 94. See generally Colin Barnes, British Council of Orgs. Of Disabled People, Disabling Imagery: An Exploration of Media Portrayals of Disabled People (1992), available at www.leeds.ac.uk/disability-studies/archiveuk/index (describing the variety of stereotypes attached to disabled people in film and other media). 95. See, e.g., Thomson, supra note 88, at 9–12 (noting how literature has traditionally marginalized disabled characters as either “uncomplicated figures or exotic aliens” and that this literature reflects and reinforces marginalization in society). 96. Neil Marcus, Disability Soc. History Project, http://www.disability history.org (last visited Nov. 16, 2010). Neil Marcus is an artist living with dystonia (a rare neurological impairment) who also uses a wheelchair. 97. Ware, supra note 31, at 110. 98. Id. at 120.

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As Disability Studies develops in and among different fields, the models as well as the language of Disability Studies will begin to overlap and expand.99

2. The Language of Disability Studies In addition to various theories and models of disability that have developed within the new field of Disability Studies, scholars also have explored the use of language to describe disability as part of the Disability Studies paradigm. A society’s view of people with disabilities, as well as the words it uses to describe them, tells a great deal about a society’s values. A society committed to justice and equality may evidence these values through formal rules, laws and government policies and programs. Yet, even where such rules, laws, and programs value equality, the valuing of the people subjected to those rules, laws, and programs cannot be assumed. “Where law is designed to achieve the objectives of equality, and to protect and promote even the weakest members of the community, it is necessary that these fundamental values are reflected in everyday experience.” 100 Disability Studies provides us with the tools to understand the connection between language, power, and societal attitudes and beliefs with respect to the place of disability in society.101 The law, in particular, relies heavily on the written and spoken word. Indeed, language is one of the most important tools of our legal profession. Lawyers negotiate, interview clients, crossexamine witnesses, present arguments in court, and rely on the persuasiveness of words in briefs and judicial opinions. Understanding language and the power of language is as important to law students as it is to practicing lawyers and judges. Not only do we strive for our students to use language well in writing (as evidenced by the coveted nature of law review editing positions), but new programs in legal writing and oral advocacy are now featured

99. The contributions of feminist theorists such as Susan Wendell may not fit within one specific model, but provide an important perspective that intersects with different models. See, e.g., Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability (1996) (examining disability from multiple perspectives including social, cultural and biomedical constructs and the project of feminist ethics). 100. See Melinda Jones & Lee Ann Basser Marks, Valuing People Through Law—Whatever Happened to Marion?, 17 Law in Context 147, 148 (2000). 101. Kudlick, supra note 10, at 768–69.

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prominently in most law school catalogues. In a profession that relies so much on the written and spoken word, don’t we need to invite our students to think about how we refer to other people? Who has the right to decide what any given group of people should be called? Which words hurt and should be avoided and which bring pride and should be used? What does one’s word choice generally reveal about our values and our point of view? In his often-cited article, Violence and the Word, former Yale Law Professor Robert Cover brought into public scrutiny, perhaps for the first time, the relationship between law, language, and violence.102 He acknowledged that words alone can bring violence and delegitimize the individual when he wrote, Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life . . . . When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.103 The power of language is particularly relevant with respect to words that describe people with disabilities. Word choice can reveal values that reflect the speaker’s beliefs about disability as well as human worth, in general.104 Demeaning and degrading language that detracts from the value of people with disabilities in society is everywhere. “Newborns labeled as ‘defective’ receive substandard care, adults marked as ‘incompetent’ lose all autonomy,” and children with “special needs” may face isolation from their peers. 105 Accordingly, terms such as “retard” have been replaced with “a person with a cognitive (or intellectual) disability;” “gimp” has been replaced with “a person with a spinal cord injury,” and a “nut” or 102. Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986). See also generally Robert M. Cover, The Supreme Court 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev 4, 40 (1983) (finding that “the jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence”). 103. Cover, Violence and the Word, supra note 102, at 1601. 104. See Macurdy, supra note 81, at 443 n.1 (citing Felix Cohen, The Reconstruction of Hidden Value Judgments: Word Choices as Value Indicators, in Symbols and Values: An Initial Study 545 (Lyman Bryson et al. eds., 1954)). 105. Id.

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“lunatic” has been replaced with a person with a psychosocial disorder or a consumer (or survivor) of mental health services. Such changes in the language of disability are not merely about “political correctness.” These language changes reflect an overdue recognition of the respect owed to people with different impairments, who are no less part of our society, and who are no longer willing to accept labels of exclusion and stigmatization. Language also has unintended consequences as disability has come to denote deficiency. Used as a metaphor, disability connotes what is not “normal.” Examples such as “dumb luck,” “lame idea,” “falling on deaf ears,” “blind rage,” and “stand up for yourself” are significant for the images they present. A “crazy” or “retarded” idea is a bad idea; “blind to the fact” means lacking knowledge or having no understanding; and someone who is “crazy” means someone who is out of control and not someone you would want to get to know.106 As Ben-Moshe writes, “None of these signifying phrases carries positive and empowering interpretations . . . we must be aware of the oppressive power of ‘everyday’ language and try to change it.”107 Within the new field of Disability Studies, Disability Studies scholars vary regarding the language they use to refer to the people at the center of their inquiry. Some scholars refer to “a person with a disability” or “people first” language, which conveys the idea that having a disability is secondary to a person’s primary identity as a “person” or “human being.” Similarly, a person “labeled as disabled” or “labeled as mentally ill,” focuses on how disability or mental illness is a socially constructed definition imposed on a person who may or may not agree with the classification. Other scholars, particularly in the UK, refer to “a disabled person” to draw attention to the centrality of disability in the individual’s identity. A “deaf” person and a “Deaf” person mean very different things. The former includes deafness as one of many adjectives that could be used to describe the person, while the latter emphasizes the person’s membership in a culturally defined linguistic minority. It is also important to note that each of these examples ignore entirely other aspects of the person’s identity, including the person’s race, gender, sexuality, age, ethnic, cultural or religious background, 106. Ben-Moshe, supra note 28, at 108. 107. Id. at 108–09. According to Ben-Moshe, “Using disability as an analogy not only offends certain individuals, but also impedes clear communications, perpetuates false beliefs about disability, and creates an environment of unease and exclusion.” Id. at 107.

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or even other physical traits or personality characteristics. Seldom do we hear “a person with a disability” described instead as “the attractive man” or the “friendly woman,” or “the bright young student.” Once a person becomes disabled, the disability itself becomes not only the person’s primary identity, as seen by others, but more often than not the person’s only identity. All other physical, sexual, gender, intellectual, emotional or personality characteristics of the person seem to disappear. In addition to examining how we use language, Disability Studies helps us to describe the large, diverse and growing number of people with disabilities. In the U.S. today, approximately 50 million people are considered “disabled;”108 worldwide, the estimate is around 650 million people.109 Disability Studies raises the question of what so many people from so many parts of the world with so many different abilities and impairments may possibly have in common with each other, a commonality the single label “disability” implies. For example, a 23-year-old white male law student at Syracuse University who is blind may have little in common with a 78-year-old African-American blind woman who works as a teacher in Chicago or with a 23-year-old white male law student at Syracuse University who is Deaf. A child with autism in Egypt may have little in common with a child with spina bifida from Canada, and a mother in Kenya with HIV may have little in common with a father in China who has spent time in a mental hospital. People who use wheelchairs, those who have chronic pain, or students who learn or write at a slower pace than other students, may have vastly different experiences and perspectives from one another and from other people who do not use wheelchairs, who do not live in chronic pain, or who have higher measured intelligence. Yet people with these different experiences share in common one important and salient feature: each of them is perceived by their respective societies as disabled, regardless of whether they see themselves or each other that way. People who are blind, deaf, hard of hearing, or who have a physical or cognitive impairment, or who are labeled mentally ill, are all considered “disabled,” and not “normal.” From the “feel good” stories

108. Frequently Asked Questions, Office of Disability Emp’t Policy, U.S. Dep’t of Labor, http://www.dol.gov/odep/faqs/people.htm (last visited Jan. 18, 2011) [hereinafter Frequently Asked Questions] (noting that, according to Census Bureau data, approximately “49.7 million Americans have a disability”). 109. Factsheet on Persons with Disabilities, U.N. Enable, http://www.un.org/ disabilities/default.asp?id=18 (last visited Nov. 5, 2010).

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about the poor “crippled” children featured in fund raising materials to the media’s idealization of youth, perfection of body and mind is the desired (but unattainable) norm from which people with disabilities differ.110 As the Feminist Disability Studies scholar Susan Wendell has written, “We live with particular social and physical struggles that are partly consequences of the conditions of our bodies and/or minds and partly consequences of the structures and expectations of our societies, but they are struggles that only people with bodies and/or minds like ours experience.”111 Disability Studies challenges us to reexamine our assumptions about the universality of the concept of the norm. Indeed, as the Disability Studies scholar Lennard Davis has observed, “normal” itself is a fiction. As Davis explains, the term “normal” evolved as a category during the mid-19th century’s occupation with human sciences and the rise of statistics. 112 The concept of an “average person” emerged. Prior to that time, the standard was a “divine body,” an “ideal body . . . not attainable by a human.”113 The concept of an “average person” became the “normal person,” the standard against which human deviation was measured.114 The concept of normal and average was even used by some very progressive and popular thinkers throughout history. Karl Marx, for example, used the concept of the average or normal in relation to his notion of labor theory of value and average wages—based on the idea of the average worker.115 Despite Marx’s

110. Kudlick, supra note 10, at 768. 111. Wendell, supra note 99, at 79–80. 112. The concept of normal itself did not come to be until the mid-nineteenth century with the advance of statistics. “Statistik” was first used as a word in 1749 to signify the compilation of information about the state and it was a French statistician in the mid 1800’s who first coined the term “average man.” The average man, the idea of the man in the middle, became the symbol of the way of life and the justification of the middle class ideology. See Lennard J. Davis, Constructing Normalcy: The Bell Curve, The Novel, and the Invention of the Disabled Body in the Nineteenth Century, in Disability Studies Reader, supra note 45, at 3, 4–5; see also Longmore & Umansky, supra note 18, at 36 (“The ascendance of normality signaled a shift in the locus of faith from a God-centered to a human-centered world, from a culture that looked within to a core and backward to lost Edenic origins toward one that looked outward to behavior and forward to a perfected future.”). 113. Davis, supra note 112, at 5. 114. Davis, Constructing Normalcy, supra note 112, at 4–5. 115. Id. at 5–6.

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many positive contributions, some may examine his complicity in enforcing normalcy in the sense that certain deviations from society, in terms of the distribution of wealth, were to be kept at a minimum. Psychologists and psychiatrists, too, are implicated. Freud’s work could not have been done without the idea of the normal.116 With this concept of the norm, of course, came the concept of deviation from the norm, and people with disabilities became the deviants. As disability became conflated with deviance, the eugenics movement was born. 117 This movement was social, political, and scientific. It reflected the fears of many “normal” (white) people that they were becoming outnumbered by genetically defective members of society including the non-whites, “feeble-minded,” epileptics, criminals, and the insane, who were passing on their “deviant genes” at the expense of the “normal.”118 By the 1900s, eugenics began to define all people with disabilities as deviants based on the concern 116. See id. at 10. 117. See Michael Burleigh, Death and Deliverance: “Euthanasia” in Germany c. 1900–1945 18–24 (1994) (describing how views of the mentally ill as economic and social burdens contributed to the development of the euthanasia program in Nazi Germany); Stanley Powell Davies, Social Control of the Mentally Deficient 59–76 (Arno Press 1976) (1930) (discussing the impact of studies on genealogy, heredity, and fertility in raising “eugenic alarms” about the mentally ill); see also generally Pauline Margaret Hodgson Mazumdar, The Eugenics Movement: An International Perspective (2006). Within Disability Studies much discussion is dedicated to eugenics, euthanasia, and the social legitimacy of genetic testing, screening, and eventually aborting fetuses with projected impairments. All of these are depicted by disability activists as a form of genocide, as most clearly advocated by the organization Not Dead Yet (http://www.notdeadyet.org/). Diane Coleman of Note Dead Yet has, for example, described Peter Singer “as ‘a public advocate of genocide.’” Johann Hari, Peter Singer: Some People are More Equal than Others, The Independent (UK), June 4, 2004, at 2. For other discussions of this subject, see also; Ruth Hubbard, Abortion and Disability—Who Should and Who Should Not Inhabit The World, in The Disability Studies Reader, supra note 45, at 93, 99 (arguing that selective abortions are based in a eugenic ideology similar to that which existed in Nazi Germany); and Russell, supra note 49, 18–29 (describing the killings of disabled people through the Nazi euthanasia program as a “holocaust”). 118. See Martin Pernick, Defining the Defective: Eugenics, Aesthetics, and Mass Culture in Early 20th-Century-America, in The Body and Physical Difference: Discourses of Disability, supra note 90, at 89, 89–110 (exploring the use of aesthetic values in “eugenic constructions of hereditary disease and disability” and noting that “[e]ugenic popularizers promoted definitions of ugliness that reinforced their judgments on other human differences, including gender, class, race, and nationality”); and Steven Selden, Eugenics and the Social Construction of Merit, Race and Disability, 32 J. Curr. St. 235, 235–49 (2000) (discussing the popularization of eugenics in a variety of educational settings).

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that individual differences and “defects” would permeate the national identity.119 This view led to eugenics laws and forced sterilization. By 1941, 33 U.S. states had endorsed sterilization policies.120 Even today, sterilization of women with cognitive disabilities continues in many countries. 121 While we usually think of eugenics associated with Nazism, it was not a fringe group in the United States. Historians of disability policy have written persuasively about how eugenics was part of the work of many enlightened thinkers, and was even included on socialist platforms. Emma Goldman, for example, wrote that unless birth control was encouraged, the State would “legally encourage an increase in paupers, epileptics, cripples, and degenerates . . . .”122 Thus regardless of how people with disabilities see themselves or each other, for centuries they have been referred to as not “normal” by the majority who are presumed to be strong, intelligent, sighted, hearing, ambulatory, in control, able bodied, and non-disabled. Disability Studies scholars have begun to pay attention to the eugenics movement not only because of its place in history, but because of its modern day equivalents, which some say are euthanasia (“mercy killing”) and the social legitimacy of genetic

119. Davies, supra note 117, at 59, 79 (describing the influence of the work of Sir Francis Galton in 1901 and of the British Royal Commission’s 1908 study in popularizing the supposed heredity of “feeblemindedness” and its relationship to social problems, respectively). 120. As Stanley Powell Davies explains in Social Control of the Mentally Deficient, the eugenics measures used in the early twentieth century emerged from a belief that “‘feebleminded’ individuals should be prevented from reproducing and should be institutionalized because they posed dangers to society.” Davies, supra note 117, at 76. See also generally Mazumdar, supra note 117. 121. In response to the continuing practice of forced sterilization in some countries, the newly adopted UN Convention on the Rights of People with Disabilities includes a specific article prohibiting discrimination regarding pregnancy planning and involuntary sterilization. See Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, art. 23, U.N. Doc. A/RES/61/106 (Jan. 24, 2007). The Convention was adopted by consensus by the General Assembly on August 25, 2006, together with its Optional Protocol. Optional Protocol to the Convention on the Rights of Persons with Disabilities. G.A. Res. 61/611, ¶ 1, U.N. Doc. A/61/611 (Dec. 6, 2006). The CRPD text, along with its drafting history, resolutions, and updated list of signatories and States Parties is posted on the United Nations Enable website, available at http://www.un.org/esa/ socdev/ enable/rights/convtexte.htm. 122. See Davis, Constructing Normalcy, supra note 112, at 8 (citing Daniel Kevles, In the Name of Eugenics and the Uses of Human Heredity (1985)).

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testing, screening, and abortion of fetuses with abnormalities.123 To the extent that such contemporary practices continue to define who is normal and therefore who should live, the challenge for Disability Studies scholars is, in Lenny Davis’ words, “to reverse the hegemony of the normal and to institute alternative ways of thinking about the abnormal.”124

III. INTRODUCING DISABILITY LEGAL STUDIES A. Where Law and Disability Studies Meet In order to discuss what the law can learn from Disability Studies, we must first define what we mean by “law.” Traditionally, laws are written by legislators, interpreted by courts, and enforced by the government. As such, the “law” is a collection of rules imposed by authority; a legal document setting forth rules governing a particular kind of activity; a rule or body of rules of conduct inherent in human nature and essential to or binding upon a society; a generalization that describes recurring facts or events in nature. It also encompasses jurisprudence, the branch of philosophy concerned with the principles that lead courts to make the decisions they do as well as the profession that is mastered by graduate study in a law school and that is responsible for the judicial system. Law is the ultimate conservative authority in any given society.125 Societies enact laws to maintain order and prevent harm to persons and property. Laws also serve to mediate relations between people. But above all, to the extent that law is generally viewed as a

123. See supra note 117. See also Jacqueline Vaughn Switzer, supra note 63, at 148–52 (discussing the history of Not Dead Yet, and the rise of the organization as a countermovement to the right-to-die movement); See also Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 Fla. St. U. L. Rev. 315, 332–341 (2003) (discussing the rationales for prenatal testing and arguing that, to create a more accepting society for people with disabilities, medical professionals must “convince those parents to learn about how children and adults [with disabilities] survive and thrive; and then endorse the choices people make about their reproductive and family lives”). 124. Id. at 15. 125. The role of law in society has been viewed differently over time. Writing in 350 BCE, the Greek philosopher Aristotle declared, “The rule of law is better than the rule of any individual.” (This translation reads, “[I]t is more proper that law should govern than any one of the citizens.”) Aristotle, Aristotle’s Politics 3.16 (W.E. Bolland trans., 1877).

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system of rules that shape politics, power, and society, it becomes the vehicle with which the status quo and existing power relationships are maintained. 126 Indeed, laws are designed to conserve and preserve the rule of law. But do they? And, on whose behalf and for whose benefit? These are some of the questions that critical legal theorists as well as Law and Society scholars have raised.127 These 126. The legal philosopher H. L. A. Hart argues that law is, in fact, a “system of rules.” H. L. A. Hart, The Concept of Law 99 (1961). In this system, the judiciary’s role is to apply the facts before it to the law (though Hart’s thesis does contemplate the existence of judicial discretion). See id. at 121–50 (describing the appropriate role of judges within the extreme paradigms of formalism and ruleskepticism). Ronald Dworkin, however, describes law as an interpretive concept aimed at achieving justice. Although Dworkin recognizes that “the law” may not always be clear with respect to whether certain conduct is permitted or prohibited, the moral principles embedded in the law’s purpose and intent should provide guidance on the law’s meaning and its application to particular facts. See Ronald Dworkin, Law’s Empire 410–11 (1986). Is there a duty to obey the law? What value has the rule of law? See also generally H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 1–27 (Oxford University Press, 2nd ed. 2008) (1970); John Rawls, A Theory of Justice (1971); Joseph Raz, The Morality of Freedom (1988) (all contemplating these questions); cf. Amartya Sen, The Idea of Justice, at x (2009) (“Justice is ultimately connected with the way people’s lives go, and not merely with the nature of the institutions surrounding them.”). 127. Critical Legal Studies (CLS) has been defined as “a theory that challenges accepted norms and standards in legal theory and practice. According to this view, the law exists and is used to support the interests of the class that has developed it.” See Critical Legal Theory Definition, Wex Dictionary, Legal Info. Inst., Cornell Univ., http://topics.law.cornell.edu/wex/Critical_legal_theory (last visited Nov. 9, 2010); see also Pierre Schlag, Critical Legal Studies, in 2 Oxford International Encyclopedia of Legal History 295, 295–299 (S. Katz ed., 2009) (Defining CLS as an academic movement built on the rejection of “orthodox forms of legal scholarship” and a “distrust of “institutional authority”); Andrew Altman, Critical Legal Studies—A Liberal Critique 3 (1990) (suggesting that the point of the critical legal studies movement provides a critique of liberal legal and political philosophy and consists of literature generated by legal scholars which challenges the most cherished ideals of modern western legal and political thought). For other seminal discussions of critical legal theory, see generally: The Canon of American Legal Thought, (David W. Kennedy & William Fisher eds., 2006) (a broad anthology of American legal thinkers, including those involved in CLS); Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (2005); Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition (Duncan Kennedy ed., 2004); Ian Ward, An Introduction to Critical Legal Theory (2d ed. 2004); Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002); Richard W. Bauman, Ideology and Community in the First Wave of Critical Legal Studies (2002); Janet E. Halley, “Like Race” Arguments, in What’s Left of Theory? 40 (Judith Butler et al. eds., 2000); David Kairys, The Politics of Law : A Progressive

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also are questions that are relevant to Disability Legal Studies scholars today. For the purposes of the present discussion, there is little question among legal scholars that law governs a wide variety of social activities and human interactions. But law can mean many different things depending on its context. Our legal system elaborates rights and responsibilities in a variety of ways that raise important and complex issues concerning equality, fairness, liberty, justice, and power relations.128 Law is also a profession and an academic discipline. The academic study of law, both as a science (jurisprudence), and by students preparing to become licensed to practice law, is taught in the United States at specialized postgraduate law schools. In other countries, students take law as their first degree or as a one year course after majoring in another discipline. Yet, in the United States and most countries throughout the world today, legal education focuses on the doctrine of law as well as the skills and procedures necessary for the practice of law as a profession. Legal education seeks to equip soon-to-be lawyers with knowledge and skills pertaining to the law, the legal process, and the legal system, as well as the fundamental principles and values on which these are based. It seeks to foster the knowledge, skills, and values that graduates need to function effectively in a pluralistic, democratic society based on the rule of law. Although legal education has evolved in the past century in the U.S. and elsewhere, its structure and format remains

Critique (3d ed., 1998). Duncan Kennedy, A Critique of Adjudication [Fin de Siècle] (1997); Richard W. Bauman, Critical Legal Studies: A Guide to the Literature (1996); Mark Kelman, A Guide to Critical Legal Studies (1987); John Finnis, On the Critical Legal Studies Movement, 30 Am. J. Juris. 21 (1985); and Roberto M. Unger, The Critical Legal Studies Movement (1983). 128. Contract law regulates everything from your cell phone service to renting an apartment. Property law defines rights and obligations related to the transfer and title of your car, home, or womb. Tort law provides remedies for persons who have been injured or whose property has been harmed. If the injury or harm is outlawed in the penal code, criminal law offers the means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of laws, the allocation of powers of the branches of government within society, and the protection of civil rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. Finally, international law governs affairs between sovereign nation states in activities ranging from trade to environmental regulation to the newly adopted United Nations Convention on the Rights of Persons with Disabilities.

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strikingly similar to the days of Langdell and the founding of the nation’s first law school.129 Over the decades, many legal scholars have begun to explore the relationship between law and society and to ask critical questions about the role of law in society.130 What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do “we” have? Who is “we” and who bestows which rights on others? Who makes the laws and who defines who breaks the laws? To the extent that law governs relations between people, and between the state and individuals, how does law facilitate or impede access to power, justice, fairness, and responsibility? Indeed, legal issues related to difference and power have been studied for at least three decades within the legal academy. Throughout the 1960s and into the 1990s, law and society as well as the critical legal studies movement, critical race theorists, feminists legal scholars, queer legal studies and postmodernism, each, in their own way, have challenged the academy to look at how decisions are made and for whose benefit. Early law and society scholars drew on social sciences “to provide insights about both the ways that prevailing legal norms tend to legitimate social hierarchy and the complex manifestations of legal claims and tactics by groups aiming to challenge those hierarchies and injustices. Indeed, socio-legal scholars have contributed many types of studies—of judicial impact, interest group litigation, cause lawyering, the politics of rights, civil disputing, and everyday resistance, to name just a few—that are highly relevant to understanding the relationships of law and social movements.” 131

129. See M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdell, in The History of Legal Education in the United States: Commentaries and Primary Sources 589, 589 (Steve Sheppard ed., 1999) (discussing Langdell’s initiation of the case-method of legal education); see also The Gladsome Light of Jurisprudence: Learning the Law in England and the United States in the 18th and 19th Centuries 2–8 (Michael H. Hoeflich ed., 1988) (describing the two models of legal education, the apprenticeship model and the school model). 130. For one introduction to the study of law and society, see generally Lawrence M. Friedman, et al., Law & Society: Readings on the Social Study of Law (1995). 131. Michael McCann, Law and Social Movements: Contemporary Perspectives, 2 Ann. Rev. Law Soc. Sci. 17, 18 (2006).

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Critical legal studies, building on the realists’ critiques of law, exposed the relationship between law and power, claiming that the law is not neutral or value-free, but rather an active participant in power dynamics. 132 Accordingly, critical legal theorists have characterized the law as a set of rules used by the powerful to oppress the powerless and focuse their inquiry on questions related to access to power.133 To them, law is politics. Feminist legal theorists also have constructed their criticism of law by asking such questions as how does law exclude women? How can law be reformulated to incorporate experiences of women? How can feminist legal theory reconfigure existing law? And with regard to disability, feminists may ask how existing feminist legal scholarship in family, labor, caretaking, reproduction, and sexuality can be reformulated to incorporate the experiences and perspectives of women with disabilities?134 By contrast, the role of disability in law has been less studied.135 Yet Disability Studies has enormous potential within the 132. For a detailed analysis of critical legal theory, see Ward, supra note 127, at 144. For collections providing a general overview of critical legal theory through a variety of essays and approaches, see Radical Critiques of the Law (Stephen M. Griffin & Robert C.L. Moffat eds., 1997); Kairys, supra note 127. 133. For examples of the application of critical legal studies to racial justice and equality issues, see generally: Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (1989); Ian F. Haney Lopez, White By Law: The Legal Construction of Race (1996); Patricia J. Williams, The Alchemy of Race and Rights (1991); Richard Delgado, Two Ways to Think About Race: Reflections on the Id, the Ego, and Other Reformist Theories of Equal Protection, 89 Geo. L.J. 2279 (2001); Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329 (1991); Reginald Leamon Robinson, Race, Myth and Narrative in the Social Construction of the Black Self, 40 Howard L.J. 1 (1996). 134. For an overview of feminist legal theory, see generally Kathryn Abrams, The Constitution of Women, 48 Ala. L. Rev. 861 (1997) (describing various theories of feminist criticisms of law); Frug, A Postmodern Feminist Legal Manifesto, supra note 5 (Professor Frug’s unfinished work, describing in part the way in which law sexualizes, terrorizes, and maternalizes the female body); Karst, supra note 5 (examining the social construction of the idealized place of woman in society through constitutional law and the potential consequences of reshaping the law to take into account the female perspective); Silvers, supra note 5 (examining the possibilities for incorporating a disability perspective into feminist thinking). 135. See Sagit Mor, Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy, 18 Yale J.L. & Human. 63, 77–78 (2006) (acknowledging disability critiques of law are rare).

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legal academy. Scholars are now beginning to inquire into which legal theories inform the transforming and reconceptualizing of both law and disability. Disability Studies presents a lens through which to examine the place of law in society and to pose such question as: How do legal definitions of disability regulate, exclude, and/or protect marginalized populations based on their physical and mental differences, gender, economic status, race, ethnicity and sexual orientation? What are the roles of human rights, formal equality, and anti-discrimination legislation in various approaches to disability? What can people with disabilities offer to reconfigure existing law?136 By infusing a Disability Studies perspective into the law, we may shed light on complex lessons about our culture, society, minority rights, power, authority, and the role of law in changing society just as issues of race, ethnicity, gender, and sexual identity have recently informed our understanding of society and power.137

B. Why Teach Law from a Disability Studies Perspective Only recently have legal scholars begun to explore the intersection of Law and Disability Studies. This new field, called “Disability Legal Studies,” refers to scholarship that seeks to apply a Disability Studies perspective to law.138 An Israeli scholar, Sagit Mor has written,

136. These questions are drawn from an announcement calling for paper submissions to a feminist theory workshop. Call for Papers: Feminism Disability Theories and the Law, Disability Studies: Conferences, Call for Papers & Call for Nominations, Feminism & Legal Theory Project, Emory Univ. (Oct.5, 2009), http://disabilitystudiescfp.blogspot.com/2009/10/call-for-papersfeminist-disability.html. 137. “Just as feminist critique has relied on the sex/gender dichotomy to explain the complex relations between one’s biological sex and the construction of gender through social roles, so has disability critique developed a valuable distinction between impairment, which stands for the biological condition that a person might have, and disability, which signifies the social and cultural barriers that are imposed on that person in various ways due to the impairment.” Sagit Mor, Imagining the Law: The Construction of Disability in the Domains of Rights and Welfare—The Case of Israeli Disability Policy 21 (2005) (J.S.D. thesis, N.Y.U. School of Law) available at http://works.bepress.com/sagitmor/5. But see Tom Shakespeare & Nicholas Watson, The Social Model of Disability: An Outdated Ideology?, 2 Res. in Soc. Sci. & Disability 9, 14–15 (2002) (arguing that Disability studies should abandon disability/impairment binary just as feminist theory has abandoned the binary between sex/gender). 138. Mor, supra note 135, at 64.

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Although disability studies’ critique is not altogether new to some legal scholars, it has not yet gained adequate recognition in legal discourse. I maintain that the time has come to identify, introduce, and label the field of DLS [Disability Legal Studies], bring it to light, attend to its premises, and incorporate its lessons into legal theory and practice. I further suggest that attending to [Disability Legal Studies] would bring a shift in writing on disability and the law from a focus on doctrinal analysis or policy advocacy to a research regarding the constitutive role of law in the production of disability. 139 Indeed, legal scholars, law students, and lawyers are generally familiar with disability as a legal issue. Through the disability rights movement and the enactment of various disability rights laws, lawyers, Congress, and the courts have become familiar with disability in the context of the Americans with Disabilities Act and its provisions regarding anti-discrimination, accommodations, and accessibility. But the new field of Disability Legal Studies looks beyond the traditional view of equality, as in the Lockean view that each person has the right to be treated like anyone else.140 Disability Studies sees disability as a social construct shaped by social systems of domination, and it seeks to challenge the way disability is constructed by law locally, nationally, and globally. A study of disability in law, particularly in a global context, provides us and our students the opportunity to discuss how to bridge this gap between civil rights and human rights and between formal and substantive equality.

139.

Id. (footnote omitted). Mor goes on to explain, Incorporating the lessons of disability critique into legal education is a radical move, as it seeks to transform mainstream legal education. In the context of disability it is an act of resistance, since usually people with disabilities are expected to be mainstreamed into the “normal” education system. Shifting the burden of mainstreaming from the individual person to social institutions is a first step in employing disability critique . . . . Id. at 64 n.4. 140. See John Locke, Second Treatise of Civil Government §§ 87, 95 (1690), available at http://www.constitution.org/jl/2ndtreat.htm; see also generally Rawls, supra note 126 (proposing the idea of “justice as fairness” and arguing that laws are just if we would have chosen them without knowledge of our relative positions in society).

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Yet the question remains: What does a Disability Studies perspective have to do with what we, as law teachers, do in our classrooms? How would a disability legal studies perspective help law students or lawyers understand contracts, torts, evidence, or tax? Put another way, why would law faculty choose to integrate Disability Legal Studies into the law school curriculum? As I will explain below, to the extent that law reflects society’s norms, values, and intolerances, it is an arbiter of power relations. As such, law itself can become part of the problem by creating social barriers and classifications based on competency or abilities. As Jones and Marks have observed, “even very many well intentioned protective laws may undermine the rights of people with disabilities.”141 However, they also admit that “law is an important tool . . . [whose] educative and symbolic value is not to be underestimated.” 142 Just as the law can create social barriers by creating classifications based on competency or abilities, therefore, it can also foster equality and inclusion. Stated differently, law can be a source of social change through the enactment and implementation of progressive laws and inclusive interpretation of laws by attorneys and the courts. The law can inform Disability Studies with respect to how a given society includes or excludes people with disabilities. It provides a framework with which to assess the infusion of Disability Studies values into society. Disability Legal Studies provides the tools to explore such regenerative aspects of law.143 Within law, a shift has already begun to take place from the traditional doctrinal analysis forbidding discrimination on the basis of disability 144 to a more textured understanding of people with 141. Melinda Jones & Lee Ann Basser Marks, Law and the Social Construction of Disability, in Disability, Divers-ability and Legal Change, supra note 100, at 3, 4. 142. Id. at 16. 143. One positive example of law is the recent adoption of the United Nations Convention on the Rights of People with Disabilities (CRPD). The CRPD creates, for the first time, affirmative obligations on State Parties to recognize people with disabilities and ensure their equality throughout all aspects of society. Although the implementation of the specific mandates in the CRPD will vary from country to country and even within a given country, the role of the CRPD in advancing the cause of people with disabilities worldwide cannot be ignored. See Arlene S. Kanter, The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities, 34 Syracuse J. Int’l L. & Com. 287, 290 (2007). 144. See Bagenstos, supra note 70, at 7 (arguing in part that the concept of disability has been socially constructed by “the interaction between societal barriers . . . and a medical impairment”); Peter David Blanck & Mollie Weighner

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disabilities as a minority group and growing attention to disability as a social construct. 145 But even within this understanding, law is perceived as an instrument for social change through established mechanisms, such as statutes and court decisions. The law is still viewed “as separate from society, [and] as a reflection of social relations and cultural meanings.” 146 A Disability Legal Studies analysis would ask instead how and in what ways the law has participated in forming those hierarchies and how they are related to the overall exclusion and marginalization of people with

Marti, Attitudes, Behavior and the Employment Provisions of the Americans with Disabilities Act, 42 Vill. L. Rev. 345 (1997) (discussing the importance of societal attitude toward persons with disabilities in the context of the ADA); Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413 (1991) (analyzing the ADA in relation to other civil rights legislation); Robert L. Burgdorf, Jr., “Substantially Limited” Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409, 423–24 (1997) (arguing against a “preferred group mentality” that attempts to provide special protections for persons with disabilities); Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 160 (1999) (discussing pro-defendant bias in ADA litigation); Chai R. Feldblum, Definition of Disability under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91 (2000); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L.J. 1 (1996) exploring the differences between traditional civil rights law, forbidding discrimination, and the ADA, mandating discrimination in favor of disabled individuals); William J. McDevitt, Defining the Term “Disability” Under the Americans with Disabilities Act, 10 St. Thomas L. Rev. 281 (1998) (discussing the complexities of defining disabilities under the ADA and the potential for that definition to alter the conception of disabilities). 145. See Mor, supra note 135, at 79–80; see also Mary Crossley, Reasonable Accommodation as Part And Parcel of the Antidiscrimination Project, 35 Rutgers L.J. 861, 863–64 (2004) (“[T]he primary barriers faced by people with disabilities lie in how society has historically structured its institutions, attitudes, and physical environments.”); Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21 Berkeley J. Emp. & Lab. L. 19, 24–31 (2000) (discussing judicial misunderstanding of the ADA); Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, 40 UCLA L. Rev. 1341, 1385–1401 (1993) (exploring the development of federal law concerning people with disabilities and discouraging legislation based on social and medical pathology models). 146. See Mor, supra note 135, at 75 (discussing the prevailing use of the “minority group” or “rights” models by legal scholars looking at disability issues as engendering this view).

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disabilities.147 If we were then to examine law through the Disability Legal Studies lens, the emphasis would be on how people with disabilities are excluded within the law, and how inclusion may occur. As Colin Barnes, Geof Mercer, and Tom Shakespeare have written, While the voice of disabled people and their organizations is being heard more often and more distinctly than before, the struggle for improved socioeconomic conditions, for a better quality of life, and for citizenship rights generally goes on. Recent policy debates ranging across welfare benefits and services to abortion and euthanasia have increased the suspicions of disabled people. There is generally a much-changed political rhetoric responding to disabled people’s claims, and in considering research evidence and making policy proposals, but promised improvements all too often fail to materialize.148 From a practical view, it is true. Most people with disabilities believe that things have not gotten much better for them over the past twenty years, even with the enactment of the Americans with Disabilities Act.149 Why is this so? What are the root causes of these problems? And most importantly, what can we do to alter this situation? Such questions are (or should be) central to the study of law. These questions raise important issues regarding the concepts of justice, power, equality, and liberty. Indeed, the relationship between citizen and society is essential to legal education, although different law schools give priority to different subject areas or skills. In most law schools today, there are some courses that focus primarily on law that affects the daily lives of all people, including criminal and civil law. Other courses focus on fundamental legal concepts and principles, including those principles’ origin and contemporary influence and impact. Other courses stress the application of legal principles and skills in specific real-world 147. See id. at 82. 148. Barnes, Exploring Disability, supra note 56, at 227. 149. See Bagenstos, Law and the Contradictions of the Disability Rights Movement, supra note 70, at 117–18; see also Samuel R. Bagenstos, Has the Americans with Disabilities Act Reduced Employment for People with Disabilities?, 25 Berkeley J. Emp. & Lab. L. 527, 533–34 (2004) (arguing that the ADA did not “succeed . . . in improving the employment rates for people with disabilities”); Samuel R. Bagenstos, The Future of Disability Law, 114 Yale. L. J. 1, 20 (2004) (stating that some commenters “contend that the [ADA] in fact caused the drop in disability employment in the 1990s”).

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situations, through clinics and externship experiences. And other law schools highlight courses that examine law as an institution that provides its government with power and authority that can bring both order and the risk of abuse, as well as the relationship between power and law, as was the focus of the critical legal studies movement. In so doing, legal education has the potential to understand how law can and has promoted inclusion, social cohesion, and social change. Disability Legal Studies is relevant to our law school curriculum and the legal academy in general for the following reasons.150

1. Disability Is “Us” The first reason why a Disability Legal Studies perspective is relevant to the study of law is that disability itself directly or indirectly affects most everyone, everywhere. Throughout the world today, it is estimated that over 650 million people are disabled. 151 Estimates of people with disabilities in the United States in 1991 found that they make up 19.4% of the population, equivalent to 50 million people.152 In addition to people with disabilities themselves, their family members, caregivers, friends, teachers, colleagues, and neighbors are also affected by disability, so that perhaps as many as half of the U.S. population may be said to be affected by disability. Therefore, people with disabilities are “too large [a minority] to ignore.”153 Moreover, if not now, at some point in the future, practically everyone (including law students, lawyers, and law faculty) will either experience disability directly, or know someone with a mental or physical impairment. Accordingly, it may be said that we are all “temporarily-able-bodied” or “T.A.B.” because sooner or later most of us will be disabled at some point in our lives; whether it comes sooner or later varies depending upon one’s circumstances. As scholars like

150. See Syracuse Univ. Ctr. on Human Policy, Law, and Disability Studies, Disability Studies for Teachers, available at http://www.disabilitystudies forteachers.org/index.php; Linton, Disability Studies/Not Disability Studies, supra note 12, at 525–40; see generally Bryen and Shapiro, supra note 8 (all emphasizing the importance of strong disabilities studies programs). 151. Factsheet on Persons with Disabilities, supra note 109. 152. Id. See also Population Profile of the United States, U.S. Census Bureau, http://www.census.gov/population/www/pop-profile/disabil.html (1991); Frequently Asked Questions, supra note 108. 153. Davis, Bending Over Backwards, supra note 14, at 4.

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Susan Wendell have explained, factors “such as race, class, gender, nationality, and age can have a significant impact on the experience of living with an impairment and its disabling consequences.”154 But the fact remains that anyone can become disabled at any time. Further, people with disabilities are one of the fastest growing minorities in the world.155 As more people live longer due to advances in medical research and technology, more people may be expected to acquire impairments and become disabled in old age.156 In 1980, it was estimated that 370 million people were over the age of 60.157 Today one in ten people is now 60 years of age or older.158 In Italy, Germany, and Japan, more than 20 percent of the countries’ respective populations are now over 65. 159 By 2025, there will be 1.1 billion elderly people worldwide.160 Not only is the population of people with disabilities and those affected by it increasing, but people with disabilities themselves have become more visible within society. This increased visibility of people with disabilities in the United States is due in large part to the changing view of disability brought about by the

154. Kudlick, supra note 10, at 768 (citing generally the work of Wendell and others). 155. See Wendell, supra note 99, at 18 (noting that “aging is disabling” and that recognition of this fact “helps non-disabled people to see that people with disabilities are not ‘Other.’ . . . Unless we die suddenly, we are all disabled eventually”). 156. Arlene S. Kanter, The United Nations Convention on the Rights of Persons with Disabilities and its Implications for the Rights of Elderly Persons Under International Law, 25 Ga. St. U. L. Rev. 527, 528 (2009); Sarah Moses, A Just Society for the Elderly: The Importance of Justice as Participation, 21 Notre Dame J.L. Ethics & Pub. Pol’y 335, 336–38 (2007). See generally Aimee R. Fagan, An Analysis of the Convention on the International Protection of Adults, 10 Elder L.J. 329 (2002) (discussing the rights of elderly people as they travel abroad). 157. Lung-chu Chen, Aging: A New Human Rights Concern—A PolicyOriented Perspective, 81 Am. Soc’y Int’l L. Proc. 169, 175 (1987) (quoting remarks by Philip Alston noting this statistic in support of the proposition that there should be growing interest in the rights of the aging). 158. The Aging of the World's Population, Population Div. of the Dep't of Econ. & Soc. Affairs of the United Nations, http://www.un.org/esa/socdev/ageing/ popageing.html (last visited Nov. 21, 2010). 159. Tracy McNicoll, Aging Crisis Will Soon Hit Developing World, Newsweek Wealth of Nations Blog (Sept 10, 2009), http://www.newsweek.com/ blogs/wealth-of-nations/2009/09/10/aging-crisis-will-soon-hit-developingworld.html. 160. Chen, supra note 157, at 175 (quoting remarks by Philip Alston noting this statistic).

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enactment of laws outlawing discrimination against people with disabilities, such as the Individuals with Disabilities in Education Act (IDEA), 161 the Rehabilitation Act, 162 the Federal Fair Housing Amendments Act,163 and the Americans with Disabilities Act.164 One can simply look at the list of the original supporters of the Americans with Disabilities Act, for example, to see that each of them either has a disability or a family member with a disability: Tony Coelho, a Congressman from Maryland, who sponsored the original ADA bill in the House, uses a wheelchair; Steny Hoyer’s wife has epilepsy; Senator Lowell Weicker has a son with Down Syndrome; Senator Bob Dole and Senator Bob Kerry are disabled war veterans; Senator Tom Harkin had a Deaf brother; Senator Edward Kennedy had a son who lost a leg and a sister who with a developmental disability; Senator Orrin Hatch has a brother-in-law with post-polio syndrome.165 Further, within the legal profession, more individuals with disabilities are working as lawyers, and more students with disabilities are attending law school. 166 In U.S. law schools, it is 161. Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C. §§ 1400–1482 (2004)). 162. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. 701 et seq. (2006)). 163. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (codified as amended at 42 U.S.C. §§ 3601–3631 (1988)). 164. Americans with Disabilities Act of 1990, Pub. L. No. 101-336,104 Stat. 327 (codified as amended at 42 U.S.C. § 12101–12300 (2004)). Struggle, Different Difference: ADA 165. Michael Stein, Same Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579, 627 n.201 (2004). 166. The number of lawyers with disabilities in the U.S. is difficult to ascertain. Only three of 54 American jurisdictions that license attorneys collect information on lawyers with disabilities. However, the American Bar Association compiles disability-related statistics on the legal profession based on the ABA’s annual census. See ABA Comm’n on Mental & Physical Disability, ABA Disability Statistics Report 4–5 (2010), available at http://new.abanet.org/disability/ PublicDocuments/ABADisabilityStatisticsReport.pdf. According to the ABA’s 2009 annual census in the report, 1,658, or 6.76%, of the ABA’s 383,000 members in 2009 answered affirmatively to the question “Do you have a disability?” That percentage is an increase from the 2008 figure of 6.69%, but a decrease from the 2007 figure of 7.18%. Id. at 4. The ABA noted in 2010 that “Douglas Kruse of Rutgers University and the National Bureau of Economic Research, using the 2007 ACS micro data, reports an even lower number citing, out of the 1.08 million Americans who are lawyers or judges, magistrates, and other judicial workers, only 3.8% have a reported disability.” Id. at 4. The U.S. Bureau of Labor Statistics reported “that for the third quarter of 2009 (July, August, and

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estimated that at least ten percent of law students have a disability, although the number is likely higher since many law students do not self-identify due to the stigma of disability that still remains in society and within law schools today.167

September), 2.6% of those employed in the legal occupation (e.g., lawyers, judges, magistrates, law clerks, court reporters, paralegals) had a disability.” Id. This figure was slightly lower that the second quarter’s 2.9%. Id. As to law students, the ABA Office of Legal Education and Admissions to the Bar found that in the academic year just ending, 2009-10, 4,941 (3.2%) of the 154,549 law students in ABA-accredited law schools (both J.D. and LL.M students), were provided accommodations—an increase from 4,111 (2.7%) for 2008. Id. at 5. The ABA cautioned, however, that “despite such increases, it is worth noting that these figures do not reflect an actual estimate or figure as to how many law students in ABA-accredited law schools have a disability.” Id. Finally, as to the employment rate of law graduates with disabilities in 2008, “84.4% of 565 law graduates with disabilities were employed, compared to about 90.9% of 28,891 non-minority (men and women) law graduates and 87% of 8,395 minority law graduates. Although the employment rate has decreased for both those with disabilities and those without disabilities, there is an overall decrease in the number of 2008 graduates with disabilities compared to the class of 2007.” Id. The American Bar Association Commission on Mental and Physical Disability also sponsors an annual conference on lawyers with disabilities and a mentoring program for lawyers and students with disabilities. See Resources & Opportunities for Lawyers with Disabilities, Am. Bar Ass’n, Comm’n on Mental & Physical Disabilities, http://new.abanet.org/disability/Pages/default.aspx (last visited June 24, 2010). For information about women with disabilities in the legal profession, see generally Carrie Griffin Basas, The New Boys: Women with Disabilities and the Legal Profession, 25 Berkeley J. Gender L. & Just. 32 (2010). In this article, the author reports on the first national study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results demonstrate that disabled female attorneys will selfaccommodate at work, instead of calling on employers to conform with their obligations under the Americans with Disabilities Act. Id. at 32, 59–76. 167. See Kevin Smith, Disabilities, Law Schools and Law Students: A Proactive and Holistic Approach, 32 Akron L. Rev. 1, 2 (1999); Donald Stone, What Law Schools are Doing to Accommodate Students with Learning Disabilities, 42 S. Tex. L. Rev. 19, 26 (2000) (noting the risks faced by law students who self-identify as having a mental disability); Donald Stone, The Impact of the Americans with Disabilities Act on Legal Education and Academic Modifications for Disabled Law Students: An Empirical Study, 44 Kan. L. Rev. 567, 569 (1996) (demonstrating empirical data showing the average number of law students requesting academic modification to accommodate their disabilities); M. Kay Runyan & Joseph F. Smith Jr., Identifying and Accommodating Learning Disabled Law Students, 41 J. Legal Educ. 317, 320–21 (1991) (comparing various survey results to support the proposition that “law school administrators are probably not aware of all the learning disabled students attending their institutions).

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The Individuals with Disabilities Education Act (IDEA), alone, has resulted in literally millions of students with disabilities—over 5,775,722 students ages six to twenty one (in 2000-01) receiving a public education in the United States.168 Of those students, many are graduating from high school and going on to attend colleges and graduate programs in law, among other fields.169 Although teaching law students with disabilities may be new to many law faculty, attending schools with non-disabled peers is not new for most law students. Most law students today attended primary and secondary schools with students with disabilities as a result of IDEA that has mandated mainstreaming for over three decades. Most law students, therefore, are used to being in classes with people who may have different abilities, and they likely expect such diversity within their law school classes. 170 Accordingly, the

168. In 2006–2007, approximately 6.7 million children and youth, or about nine percent of all children and youth between the ages of 3-21, received IDEA services. Table 2.3a. Number, percentage, and percentage distribution of children ages 3 to 21 served under the individuals with Disabilities Education Act (IDEA), by race/ethnicity: 2006, Nat’l Ctr. for Educ. Stats., U.S. Dep’t of Educ. (2006), http://nces.ed.gov/pubs2008/nativetrends/tables/table_2_3a.asp. 169. According to the U.S. National Center for Education Statistics 11 percent of undergraduates reported having a disability in 2003–2004. Nat’l Ctr. for Educ. Stats. U.S. Dep’t of Educ., Profile of Undergraduates in U.S. Postsecondary Education Institutions: 2003–04 133 (2006), available at http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2006184. College enrollment includes close to half a million students with disabilities. M. Wagner, et al., After High School: A First Look at the Postschool Experiences of Youth with Disabilities: A Report from the National Longitudinal Transition Study-2 (NLTS2) 3-1 (2005). However, the rate of people with disabilities attending postsecondary school is less than half that of their peers in the general population. Id. See also Bruder & Mogro-Wilson, at 4 (finding that the “lack of support during postsecondary schooling and the perception that other students and faculty view disabled students negatively can often contribute to a difficult college experience”). 170. I like to think that the more law students learn about disability and get to know people with disabilities, the more likely they will reject stereotypes and traditional ways of thinking about the role of disability in society as solely a medical problem, thereby becoming more welcoming to clients with disabilities when they are eventually practicing law. For faculty, however, who may not have grown up with people with disabilities, and may not know any personally, the situation is more challenging. Either unknowingly, or based on their own prejudices, law faculty may relate to students with disabilities differently in a way that creates barriers to their acceptance as competent law students. See Bruder & Mogro-Wilson, supra note 169, at 4.

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inclusion of students with disabilities in classrooms challenges both the concept and the constituency of disability.171

2. Disability Is Inclusive In addition to the prevalence of disability within society generally and within law schools today, a second reason to teach about and from a Disability Legal Studies perspective is that disability itself is inclusive. Disability crosses all lines of race, ethnicity, gender, sexuality, religion, nationality, and generations. And like race, gender, and sexuality, it teaches about inclusion, exclusion, and diversity of the human experience. Despite the number of people with disabilities in our neighborhoods, workplaces, and schools, stereotypical ideas and negative views of people with disabilities remain. Disability continues “to carry a negative social charge still supported by dominant cultural assumptions across the economic, political and intellectual spectrum.” 172 As a result, on college campuses and in law school hiring committee meetings, disability is noticeably absent from diversity discussions. Many faculty who are very progressive on issues of race, gender, and sexuality, for example, are resistant to promoting affirmative action based on disability—even though people with disabilities are grossly underrepresented in the academy, especially on law school faculties.173 As Lenny Davis has observed, “While race has become in the past twenty years a more than acceptable modality from which to theorize in the classroom and in print, as a discourse, a

171. See Ware, supra note 31, at 108. 172. Kudlick, supra note 10, at 108. Kudlick tries to understand why those who champion the causes of most marginal groups have trouble viewing disabled people as an oppressed minority. She cites to Mary Johnson, who boils it down to the false perception that no one is against the handicapped. This means that “there is no animus against disabled people—even though they are segregated and kept from full access to society, even though the special programs society affords them make for a much circumscribed life.” See Johnson, supra note 11, at 44. These issues also arise generally in Linda Hamilton Krieger, Introduction, in Backlash Against the Americans with Disabilities Act 1, 1–25 (Linda Hamilton Krieger ed., 2003). 173. Although no statistics exist on the number of law faculty with disabilities, I know of only one Deaf law professor in the US and, anecdotally, that few law schools have professors with disabilities. The ABA Commission on Mental and Physical Disability has compiled an annual report on individuals and lawyers with disabilities, their employment, and the legal profession. See Disability Statistics Report, supra note 166.

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critique, . . . disability continues to be relegated to hospital hallways, physical therapy tables, and remedial (special) classrooms.”174 Further, although most college campuses today value diversity, disability is often excluded from conversations about diversity. In diversity training programs for students, for example, students with disabilities have described to me how they have to “push their way” into the planning process. Not only is disability not generally part of diversity discussions, but when disability does come up, it is often focused on an immediate need to install a ramp or grab bars in restrooms, not on the importance of including people with disabilities as a group that faces discrimination on a daily basis. On some campuses, a shift has taken place, often as a result of the infusion of Disability Studies into the curriculum. Syracuse University is such an example.175 Syracuse University is one of the first schools to offer a graduate program in Disability Studies and the

174. Lennard J. Davis, Introduction, in Disability Studies Reader 1, 1–2 (Lennard J. Davis ed., 1st ed. 1997). 175. Syracuse University was one of the first schools to develop a graduate program in Disability Studies. Last year, Syracuse University also established a new undergraduate program in Disability Studies. Many other schools now have disability studies programs. For a listing of these programs, see Disability Studies Resources, http://disabilitystudies.syr.edu/resources/programsinds.aspx. In addition to the multidisciplinary Disability Studies program at Syracuse University, the SU College of Law’s Disability Law and Policy Program, which the author founded and directs, offers a J.D. and M.S. in Education, with a Certificate in Advanced Study (approved by NYS) in Disability Studies. These two degrees can be earned within three years, the same amount of time it typically takes law students to earn a J.D. alone. Law students also may receive the College of Law Certificate in Disability Law and Policy if they complete a certain number of disability-related law courses and non-law disability related courses taught by Disability Studies faculty in other university departments. To date, over 30 students have graduated with the Joint Degree in Law and Disability Studies and/or the Certificate in Disability Law and Policy and have secured jobs in disability law at legal aid/services offices, disability-related federal and state government offices, private firms (representing parents of students with disabilities or school districts) and at international disability rights organizations. In addition to the SU academic programs, the Chancellor convened a Task Force on Disability in 2004, which the author chairs, in order to bring SU not only into compliance with disability laws, but to go “beyond compliance” in order to create a university committed to full inclusion and acceptance of students, faculty and staff with disabilities. For more information about the Task Force and to request a copy of its 2007 comprehensive report (Report of the Chancellor’s Task Force on Disability: Realizing the Vision of Inclusion, Access, and Full Participation) that provides a blueprint on how to assess access and inclusion of disability into a university’s agenda, please contact the author.

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first law school to offer a joint degree program in Law and Education, with a Certificate in Disability Studies. The administration and faculty are well aware of the fact that without a significant number of students and faculty with disabilities who are admitted or hired and supported to participate in the university community, Disability Studies, as a field of study, will lose its credibility.

3. Disability Informs Us about the Legal System A third reason to teach from a Disability Legal Studies perspective is that disability can shed light on the history and values of our legal system. Although people with disabilities (and their accomplishments) have remained largely invisible throughout our history, further research indicates that disability, in fact, has been “present in penumbra if not in print, on virtually every page of American history.”176 For example, people with disabilities figure prominently in popular culture beginning with the freak shows of the 1930s, followed by the Barnum and Bailey Circus. 177 During the Depression, the League of the Physically Handicapped staged actions in protest of job discrimination resulting from the medical model of disability that had begun to shape policy, professional practices, and social arrangements of the early 20th century. 178 In addition, stories of veterans returning from World War II and the annihilation of people with disabilities in concentration camps have certainly entered our collective consciousness in the post-war years. More recently, stories of soldiers returning from the Vietnam, Iraq, and Afghanistan wars with post traumatic stress disorder have challenged us to consider the price of war. Though less well known, there is also the powerful account of a group of religious objectors to World War II who, after refusing to serve in the war based on their religious views as pacifists, were placed as workers in state mental institutions. 179 Horrified by what they saw, these individuals helped to expose the abuses and atrocities of mental institutions in the 1940s which led,

176. See Longmore & Umansky, supra note 18, at 2. 177. See Bogdan, supra note 37, at vii–x (discussing the historical prevalence of people with disabilities at “freak shows”). 178. Paul K. Longmore & David Goldberger, The League of the Physically Handicapped and the Great Depression: A Case Study in the New Disability History, 87 J. of Am. Hist., 888, 889–90 (2000). 179. See generally Steven J. Taylor, Acts of Conscience World War II, Mental Institutions, and Religious Objectors (2009) (detailing this history).

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later, to the politics of deinstitutionalization and to today’s scholarly study of Disability Studies. More recently, protests by activists in the disability rights movement provided the backdrop against which President George H. W. Bush signed one of the country’s most comprehensive civil rights laws, the ADA,180 not to mention the role of people with disabilities in drafting the 2006 United Nations Convention on the Rights of Persons with Disabilities.181 Disability issues are also prominent in the history of American jurisprudence in such cases as Buck v. Bell,182 in which the Supreme Court upheld as constitutional forced sterilization; Cleburne v. Cleburne Living Center,183 in which the court upheld the right of a group home for people with disabilities to open by applying a stronger version of the rational basis test of the Equal Protection

180. See, e.g., Switzer, supra note 63, at 68–89 (presenting a discussion of these protests); Susan Gluck Mezey, Disabling interpretations: The Americans with Disabilities Act in Federal Court 33 (2005) (providing the historical background of the signing of the ADA). 181. See Arlene S. Kanter, Disability Rights: Convention on the Rights of Persons with Disabilities, in 2 Encyclopedia of Human Rights 44–49 (David Forsythe ed., 2009); Kanter, The Globalization of Disability Rights Law, supra note 71, at 243; Kanter, The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities, supra note 143, at 288; see also Comprehensive and integral international convention to promote and protect the rights and Dignity of Persons with Disabilities, G.A. Res 56/168, U.N. Doc. A/RES/56/168 (Feb. 26, 2002) (calling for the involvement of relevant nongovernmental organizations in the work of the ad hoc committee originally tasked with considering proposals for a disability convention); Ad Hoc Committee on a Comprehensive and Integral International Covention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, U.N. Enable, http://www.un.org/disabilities/default.asp?id=1423 (last viewed Nov. 22, 2010) (providing information on the negotiation of the Convention, including the role of civil society in this process). The optional protocol to the Convention also gives individuals and groups the right to seek redress for violations of rights under the Convention directly to the monitoring body, after exhaustion. See Optional Protocol to the Convention on the Rights of Persons with Disabilities, U.N. Enable, http://www.un.org/disabilities/default.asp?navid=13&pid=150 (last viewed Nov. 22, 2010). 182. Buck v. Bell, 274 U.S. 200, 205 (1927) (upholding as constitutional a Virginia law that allowed sterilization of disabled female inmates at institutions to promote the “health of the patient and the welfare of society”). 183. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (holding as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment a city’s denial of a special use permit for a home for people with “mental retardation” based on the city’s irrational prejudice).

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Clause of the Fourteenth Amendment; Youngberg v. Romeo, 184 in which the court upheld the right to treatment in institutions; and Atkins v. Virginia, 185 in which the Supreme Court held that the execution of a man considered “mentally retarded” constituted cruel and unusual punishment prohibited by the Eighth Amendment. Each of these are landmark cases not only in the area of disability law, but in American jurisprudential history as well. Further, the Schiavo case186 will certainly go down in jurisprudential history as the case that required an emergency session of Congress after the Supreme Court rejected an emergency appeal by Terri Schaivo’s parents just 18 hours before a life-sustaining feeding tube was to be removed from their daugher, who was a patient in a Florida hospital.187 In fact, as further evidence of the role of disability in the public sphere, it is worth noting that the Supreme Court has decided perhaps more cases under the ADA during the first ten years since its enactment than most other statutes. Of these disability-related cases, most address fundamental issues of law beyond the issue of disability rights, such as the role of the federal government vis-à-vis

184. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (ruling that involuntarily committed residents had a right to treatment). 185. Atkins v. Virginia., 536 U.S. 304, 304 (2002) (holding that imposing the death penalty on a man considered “mentally retarded” is unconstitutional). 186. Schindler v. Schiavo, 544 U.S. 915 (2005). Terri Schiavo suffered severe brain damage in 1990 after her heart stopped, depriving her brain of oxygen. After she lived for 15 years in what some called “a vegetative state,” her husband filed a petition to remove her feeding tube, and Terri’s parents opposed the petition. A seven year-long legal battle ensued. Schiavo's feeding tube was removed for the first time and then later reinserted as legal decisions were made. The case involved 14 appeals and numerous motions, petitions, and hearings in the Florida courts; five suits in federal district court; Florida legislation (“Terri’s Law”) struck down by the Supreme Court of Florida; federal legislation (the “Palm Sunday Compromise”); and four denials of certiorari from the Supreme Court of the United States. The local court’s decision to disconnect Schiavo from life support was carried out on March 18, 2005, and Schiavo died from effects of dehydration. Schiavo Timeline, CBC News (March 31, 2005), http://www.cbc.ca/news/background/schiavo/. The ethical issue arising from her case led to involvement by politicians and advocacy groups; particularly those involved in the disability rights movement and pro-life movement. See Sheryl Gay Stolberg, A Coalition of Disparate Forces May Reshape American Law, N.Y. Times, Apr. 1, 2005, at A18 (noting the involvement of pro-life and disabilities rights groups, and the latter’s influence in persuading “Democrats like Senator Tom Harkin of Iowa to take up [Schiavo’s] cause.”). 187. Supreme Court Rejects Schiavo Appeal, CNN.com (Mar. 18, 2005), edition.cnn.com/2005/LAW/03/17/schiavo.brain-damaged/; see also Schindler, 544 U.S. at 915 (denying Supreme Court writ of certiorari on March 17, 2005).

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the states; the nature and meaning of due process under the Fourteenth Amendment; and the contours of the rights protected by the Bill of Rights.188 For example, in Board of Trustees of University of Alabama v. Garrett,189 the Supreme Court held that Title I of the ADA was unconstitutional insofar as it allowed states to be sued by private citizens for money damages. In United States v. Georgia,190 the Supreme Court ruled that Title II of the ADA validly abrogates States’ sovereign immunity in cases involving alleged violations of the Eighth Amendment. In Tennessee v. Lane,191 the Supreme Court held that people with disabilities had been denied their right to access the courts, a fundamental right protected by the Due Process clause of the Fourteenth Amendment. Although the Supreme Court did not adopt explicitly the view of disability as a social construct in these cases, the Court did implicitly adopt this view by acknowledging that the barriers to equal 188. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that Title I of the ADA was unconstitutional insofar as it allowed states to be sued by private citizens for money damages; the holding explicitly does not apply to suits for injunctive relief); Tennessee v. Lane, 541 U.S. 509, 532–33 (2004) (holding that the ADA protects a person with a disability’s right to access courts and that this is a valid exercise of Congress’ enforcement power under the 14th Amendment); United States v. Georgia, 546 U.S. 151, 157–60 (2006) (finding that Title II of the ADA, which abrogates sovereign immunity of States, is a valid exercise of the 14th Amendment enforcement power in cases where violations of the 8th Amendment are alleged); Sutton v. United Air Lines, 527 U.S. 471, 482–83 (1999), superseded by statute, ADA Amendment Act of 2008, P.L. 110325, 122 Stat. 3553 (2008) (holding that whether potential disabilities qualify under the ADA is to be evaluated in light of corrective or mitigating measures used by the person claiming the disability); Murphy v. United Parcel Service, 527 U.S. 516, 521 (1999), superseded by statute, ADA Amendment Act of 2008 (holding that the determination of whether an impairment "substantially limits" major life activity under the ADA must be made in light of mitigating circumstances, including corrective medication); Albertson’s v. Kirkinburg, 527 U.S. 555, 567 (1999) (holding that the ADA requires an individualized inquiry to determine whether an alleged disability substantially impacts a person’s major life activities); Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 185 (2002), superseded by statute, ADA Amendment Act of 2008 (holding that the “substantially limited” requirement under the ADA requires plaintiffs claiming to be disabled to prove that their disability “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”); U.S. Airways v. Barnett, 535 U.S. 391, 406 (2002) (holding ADA does not ordinarily require employers to give persons with disabilities an accommodation that would violate the rules of a seniority system). 189. Garrett, 531 U.S. at 365–68. 190. United States v. Georgia, 546 U.S. at 157–60. 191. Lane, 541 U.S. at 532–33.

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treatment in each of these cases was created by society and not only a result of the person’s impairment alone. The Court recognizes, for example, in Alabama v. Garrett, that it is the responsibility of the state to protect against employment discrimination of people with disabilities;192 in United States v. Georgia, that it is the responsibility of the state to protect the rights of all, including individuals with a disability, under the Eighth Amendment; 193 and, in Tennessee v. Lane, that it is the responsibility of the state to ensure access to the courts for people with disabilities.194 The individual plaintiffs in these cases were not required to “overcome” the alleged violations on their own, as the medical model would dictate; rather, to the extent that society has established barriers preventing each of these plaintiffs from realizing their rights, it became the responsibility of society and ultimately the state to remove such barriers and provide a remedy for violations of law. Further, the Supreme Court’s 1999 “trilogy” of decisions in which the Court addressed the definition of disability under the ADA195 is significant not only for scholars of disability law, but also for scholars of the Supreme Court. These decisions bring into focus the jurisprudential philosophy of at least some members of the Court, since in each of these cases, a majority of the Court adhered to a textualist view of judicial decision making196 by disregarding agency regulations.197

192. Garrett, 531 U.S. at 374. 193. Georgia, 546 U.S. at 159 (holding that Title II of the ADA is a valid abrogation of state sovereign immunity where an actual violation of the Fourteenth Amendment is alleged and citing previous decision holding that the Eighth Amendment’s prohibition of cruel and unusual punishment is incorporated into the Fourteenth Amendment). 194. Lane, 541 U.S. at 531. 195. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999), superseded by statute, ADA Amendment Act of 2008, P.L. 110-325, 122 Stat. 3553 (2008); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999), superseded by statute, ADA Amendment Act of 2008, P.L. 110-325, 122 Stat. 3553 (2008); Albertson’s, Inc. v. Kirkinburg, 527 U.S. 555, 565 (1999) (all holding that the approach adopted by the agency guideines is an impermissible interpretation of the ADA, as mitigating factors must be taken into account in judging whether an individual has a disability); see also Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 185 (2002), superseded by statute, ADA Amendment Act of 2008; U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (holding that the ADA does not trump rights of negotiated seniority system). 196. See generally, e.g., Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical

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In addition to Supreme Court jurisprudence, other aspects of our legal system are deeply entwined in disability issues. From the guardian laws which afford the courts power to decide who is and is not competent to make decisions about their own lives, to the insanity defense which involves an inquiry into whether an individual is culpable or exonerated based on what experts tell the court about the person’s state of mind, to the best interest of the child, which is used by courts as the standard by which to judge custody decisions (and, depending on the judge’s knowledge about disability, could result in termination of rights based on a parent’s disability), or to insurance laws which offer different levels of coverage for treatment of physical or mental impairments—disability is embedded with social and cultural meanings within our legal system. As one disability rights advocate has observed, As advocates, we deal every day with the ways in which legal power is used against individuals with disabilities, so the idea that disability bias is embedded in the structure of law is built into how we do our jobs. We see how rigid conceptions of competency are manipulated to deny people with disabilities control over their property, their living arrangements, and their bodies. We have learned that core values of individual autonomy, equality, and due process are left behind by “treatment” models and paternalism. We no longer question, though we each might express the point differently, that the law proceeds as if there were an identifiable standard of “ableness” that describes most of us, and justifies

Reasoning, 42 Stan. L. Rev. 321 (1990); Antonin Scalia, A Matter of Interpretation (1998); Robert J. Gregory, Overcoming Text in an Age of Textualism: A Practitioner’s Guide to Arguing Cases of Statutory Interpretation, 35 Akron L. Rev. 451 (2002) (all discussing various theories of statutory interpretation). 197. In contrast to the Court’s decisions, the U.S. Equal Employment Opportunity Commission (EEOC) Interpretive Guidance provided that “[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” 29 CFR app. § 1630.2(j) (1998). Further, as Justices Stevens and Breyer point out in their dissent in Sutton, “[E]ight of the nine Federal Courts of Appeals to address the issue, and . . . all three of the Executive agencies that have issued regulations or interpretive bulletins construing the statute–[agreed that] . . . the statute defines “disability” without regard to ameliorative measures . . .” Sutton, 527 U.S. at 495–96 (Stevens, J., dissenting).

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different treatment of everyone else, and that such a standard is myth.198 Disability Studies provides a vehicle with which to explore questions about the rights and responsibilities of citizens and the general role of the government in promoting and protecting the welfare of all citizens. Just as discussions of gender and race have had an impact well beyond women and people of color, so too can disability force the legal academy to reconsider the economic, social, political, cultural, religious, legal, philosophical, artistic, moral, creative and medical aspects of almost everything “we have taken for granted.”199

C. The Relationship Between Disability and Other Areas of Law Including a Disability Legal Studies perspective within a law school setting will not be easy. As a group, law professors are often resistant to change in the subject and manner in which they teach. As one (rather cynical) commentator has observed, such resistance is not surprising, given a number of factors designed to maintain the status quo in legal education. Very few law professors were effective educators before setting foot in the classroom. Nor is it likely that they had any formal training in education, including recognizing and accommodating their students’ learning styles. However, they were successful law students and expect their own students to learn the same way that they learned in law school: through competition and rigor.200 However, this view, too may be changing. If and when Disability Legal Studies is introduced into law school courses, it can provide law students with a topic of academic inquiry that can encompass all aspects of the traditional law school curriculum, and more. First, Disability Law can and should be taught interdisciplinarily. For the past 10 years, I have included in my disability law course not only graduate students from other fields, but also readings from other disciplines, including first-person 198. Macurdy, supra note 81, at 444. 199. Kudlick, supra note 10, at 5–6. 200. Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities: Law Students with Disabilities, Nontraditional Learners, and the Law Teacher as a Learner, 6 Nev. L.J. 116, 123 (2005).

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narratives and other writings by people with disabilities, law review articles, and articles on disability from other disciplines, including from other countries, as well. Second, the students in my Disability Law course are themselves diverse. They include second and third-year law students who are interested in disability law and came to Syracuse to pursue our joint degree in Law and Disability Studies or our Certificate in Disability Law and Policy, as well as students with no prior experience or particular interest in disability law. The class also includes non-law graduate students in Disability Studies, education/special education, sociology, social work, philosophy, international relations, public administration, and other disciplines. Together, these students discover—as I also rediscover each semester—the amazing breadth and scope of disability law. As we discuss together the meaning and application of the language of the ADA, or review the law’s legislative history and regulations, students have an opportunity to master legislative research and the rules of statutory construction. When I send them out to interview a person with a disability or staff at agencies that work with clients with disabilities or owners of buildings which may or may not be in compliance with the ADA (as I do as part of my course each year), these students learn how to conduct interviews at the same time as they experience community lawyering. Indeed, talking to “real” people within our local community and becoming knowledgeable about the needs of people in our neighborhoods is, in my view, an important part of my courses and of their legal education. Disability Legal Studies becomes the tool for such knowledge acquisition. For example, as we study the concept of disability discrimination, we delve into the Cleburne 201 case, in which the Supreme Court struggled to decide whether or not people with “mental retardation” who have faced a history of discrimination in the US are entitled to suspect classification under the Equal Protection Clause of the Fourteenth Amendment. This case brings us into the complex world of constitutional law (as well as property and zoning law). As we discuss cases brought under Title I of the ADA, we explore administrative procedures and the rules of evidence. Indeed, many Title I cases may have turned on what evidence was or was not presented to support a claim of discrimination. With ADA cases as our vehicle, we learn about ethics and civil procedure, since many

201.

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).

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Title I cases are disposed of at the summary judgment stage. The law of Torts is also discussed when students inevitably raise concerns about liability in a case brought under the ADA in which a patient sued her dentist for refusing to treat her in his office because she was HIV positive; 202 or whether an action for wrongful birth of a baby with a disability should be permitted to continue.203 The Supreme Court’s decision in Atkins,204 in which the Court was asked to decide if a man with a cognitive disability could be executed, raises important issues not only about the label of “mental retardation” but also about the purposes of punishment, the equity of the criminal justice system, international human rights, and death penalty jurisprudence generally. In U.S. Airways v. Barnett, 205 the Supreme Court had to weigh an injured worker’s entitlement to accommodation in the workplace against the seniority rights spelled out in a collective bargaining agreement that would have resulted in another worker receiving the position. This case allows us to delve into issues of labor law, collective bargaining agreements, and employment law. The Court’s decision in Spector v. Norwegian Cruise Line,206 in which the Court had to decide if the ADA applies to vessels that fly under foreign flags but board U.S. patrons, raised complex issues of international law, conflicts of law, and the extraterritorial application of U.S. law. 207 Family law, education law, health law, insurance law, and even tax law are other topics that are often introduced in a course on disability law. The list can go on and on.

202. See Bragdon v. Abbott, 524 U.S. 624 (1998). 203. See, e.g., Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill. 1987); Jones v. Malinowski, 473 A.2d 429 (Md. 1984); Reed v. Campagnolo, 630 A.2d 1145 (Md. 1993); Dehn v. Edgecomb, 865 A.2d 603 (Md. 2005); Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., 844 N.E.2d 1160 (Ohio 2006) (all wrongful birth cases); see also Elizabeth Weil, A Wrongful Birth?, N.Y. Times Magazine, Mar. 12, 2006, at 48 (discussing the debates around wrongful birth actions); cf. Bowen v. Am. Hosp. Ass'n, 476 U.S. 610 (1986); Marzen v. Dep’t of Health and Human Serv., 825 F.2d 1148 (1987) (both addressing the legality of withholding treatment from infants born with disabilities). 204. Atkins v. Virginia, 536 U.S. 304 (2002). 205. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). 206. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005). 207. See generally Arlene S. Kanter, The Presumption Against Extraterritoriality as Applied to Disability Discrimination Laws: Where Does it Leave Students with Disabilities Studying Abroad?, 14 Stan. J. Legis. & Pol’y 291 (2003) (discussing the extraterritorial application of the ADA with respect to students studying abroad).

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As the field of internet law develops, disability issues are also at the forefront of this new field of law. For example, in 2006, the National Federation of the Blind, on behalf of consumers with disabilities in California, sued Target Corporation alleging that Target’s website was inaccessible because blind people were unable to access much of the information on it and that they were not able to purchase anything from the website without assistance. In 2008, the parties reached a settlement and on August 3, 2009, the judge awarded attorneys fees declaring that the “plaintiffs have broken new ground in an important area of law.”208 In addition, disability cases allow us to examine the legal profession itself. Cases such as Bartlett v. NY Bar Exam,209 in which the Second Circuit decided whether a NY Bar test-taker was entitled to accommodations, places the issue of lawyer qualifications front and center within the classroom. Moreover, few cases seem as relevant as Bartlett to students who themselves will be taking a bar within a matter of months after graduation. This case is important for another reason as well. In the Bartlett case, the plaintiff was an accomplished student, who had been diagnosed with learning disabilities.210 Many students come to law school today with learning disabilities, and others are diagnosed for the first time only after they unsuccessfully attempt to complete their first year in law school. Through our discussion of Bartlett and other related cases, we have an opportunity to discuss issues of learning differences in an environment that is safe and respectful of people with disabilities, including students with disabilities who may be sitting in our class. Inevitably, each year, one or two students approach me as we are discussing these cases to self-identify as having a learning disability and to thank me for a class in which issues of learning differences are being discussed out in the open, and in a respectful way. These

208. Memorandum & Order at 10, Nat’l Fed’n of the Blind v. Target Corp. (No. C 06-01802 MHP) (N.D. Cal. Aug. 3, 2009). The settlement stipulated changes to the website and related policies, and establishing a $6,000,000 settlement fund to compensate members of the class of consumers who brought the case. Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N. Cal. 2006) (No. C 06-01802 MHP), available at http://dralegal.org/cases/private_ business/nfb_v_target.php. On August 3, 2009, Judge Patel awarded $3,738,864.96 in attorney’s fees and costs to the plaintiffs. Memorandum & Order at 14. 209. Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321 (2d Cir. 1998), vacated, 527 U.S. 1031 (1999). 210. Bartlett, 156 F.3d at 324.

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students are allowed, often for the first time in law school (or their lives), to realize that there is nothing embarrassing about having a learning disability or any disability.

1. The First Year Curriculum Although a cursory review of the law school curriculum reveals the “centrality” of disability issues, it is noticeably absent, to date, from course materials and classroom discussions in most classes, especially in the first year. But as I will illustrate here, disability is an entirely appropriate topic to introduce together with the other “traditional” law school classes, even during the first year. Disability issues arise in torts, contracts, criminal law, property, constitutional law, criminal law and civil procedure as well. In Torts, who is a reasonable person and what standard of care is owed to someone with or without a disability? What is a Disability Legal Studies perspective in discussions about wrongful birth which raise the fundamental issue of who is a human being? In Contracts as well as Criminal Law classes, issues of mental state and competency arise with respect to who may enter into a binding contract and who possesses or lacks the mens rea to be found guilty of a crime. 211 In Property, there are discussions of the Federal Fair Housing Amendment Act, the Cleburne Court’s view of restrictive covenants and special use permits for group homes for people with disabilities, as well as modifications required under the ADA for places of public accommodations and public services and programs. In Constitutional Law, the Cleburne case 212 is included in most constitutional law casebooks for its discussion of the levels of scrutiny required by the Equal Protection Clause of the Fourteenth Amendment. More recently, a case involving Title II of the ADA,

211. For example, consider the different perspectives that may be brought to the sentencing of a woman who shoots a man in self defense. The critical legal scholars may view this scenario as justified by the role of the woman as a member of a group subordinated and oppressed by the male hegemony. The therapeutic jurisprudence view, which views the therapeutic outcomes in the law as necessarily good, may ask how did this happen, and how did the woman not get the help she needed to avoid this violent act? Finally, a Disability Studies perspective would examine how the structure of society may have contributed to the woman being denied services or options based on her status as a woman with a disability in society. 212. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447–50 (1985).

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Alabama v. Garrett213 bears on discussions about sovereign immunity and the extent to which the state may be liable for damages. Tennessee v. Lane also is included in discussions in Constitutional law classes about access to justice.

2. The Upper Level Curriculum and Electives In the upper class curriculum, disability topics are easily incorporated into courses such as Family Law, which explores such issues as the rights of parents with disabilities to maintain custody of their children or the rights of parents to educate their children, with and without disabilities; Administrative Law, which discusses the application of the Administrative Procedures Act to disability benefits and workers compensation hearings; Employment Discrimination law with respect to Title I of the ADA which prohibits employment discrimination against people with disabilities; 214 Federal Tax Law, with respect to the many new tax credits that now exist for employers providing accommodations for workers with disabilities; and Estate Tax, with respect to estate planning for parents with children with disabilities who may never be able to live entirely independently, and so on. In courses on Sports Law or Entertainment Law, the syllabus will likely include PGA v. Martin, in which the Supreme Court held that it is discrimination not to modify the rules against golf carts so as to allow a PGA participant who has trouble walking to use a golf cart during the tournament. 215 In Evidence, disability issues may arise in all sorts of contexts, including the use of expert testimony in competency hearings and other contexts, the credibility of testimony by a person with a cognitive disability, and the admissibility of certain testimony (for example, testimony provided by facilitated communication).216 Insurance law, bioethics, health law, poverty law, 213. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). 214. See generally Ramona L. Paetzold, Why Incorporate Disability Studies into Teaching Discrimination Law, 27 J. of Legal Stud. Educ. 61 (2010) (arguing that employment discrimination law classes should include a disability studies perspective). 215. PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001). 216. Facilitated Communication (FC) is a method that allows people who previously had been non-verbal to communicate by typing, often with assistance. Although facilitated communication is considered controversial by some, the author has seen too many individuals communicate effectively with FC to dismiss it as too controversial. Syracuse University also houses the Facilitated Communication Institute, which is directed by the Dean of the School of

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and election law are also other upper class electives that may include significant disability related cases and discussions from a Disability Legal Studies perspective. In addition, courses on philosophy of law or that focus on issues of justice and the role of lawyers in promoting justice will find that the theories of Disability Legal Studies provide meaningful avenues for discussions.217

3. Legal Ethics and Professional Responsibility In professional ethics or professional responsibility courses, the representation of clients with disabilities should be a required topic. Some lawyers may equate disability with incompetence and see disability as the equivalent of an illness or disease. Lawyers need to learn the difference between a person whom a court found to be incompetent and a person with a disability since the vast majority of

Education, Dr. Douglas Biklen. For information about facilitated communication, see the FCI website at http://www.inclusioninstitutes.org/fci/. See also State v. Warden, 891 P.2d 1074, 1088 (Kan. 1995) (holding that evidence proffered by facilitated communication was admissible at the trial and that “when statements made using facilitated communication are admitted at trial . . . the credibility of those statements are issues for the finder of fact, just as with other types of testimony”); Matter of Luz P., 595 N.Y.S.2d 541, 546 (2d Dep’t 1993) (ruling that testimony given by facilitated communication must be evaluated in each individual case. To prove her competence to be a witness in her case, Luz P. was required to pass tests verifying her ability to communicate her own thoughts through facilitation, without any influence from the facilitator); Storch v. Syracuse University, 629 N.Y.S.2d 958, 960 (N.Y. Sup. Ct. 1995) (noting that the Family Court judge had determined that facilitated communication was not generally accepted as reliable within the relevant scientific community, and consequently refused to accept testimony elicited by way of facilitated communication); DSS ex. rel. Jenny S. v. Mark S., 593 N.Y.S.2d 142 (N.Y. Fam. Ct. 1992) (holding that a child with autism, who was an alleged victim of sexual abuse, would not be permitted to testify through facilitated communication because the technique is not generally accepted within the scientific community); Frank Brieaddy, Autistic Teenager Finds His Voice, Syracuse Post-Standard (July 31, 2006), at A1, available at http://www.autismconnect.org.uk/news.asp? itemtype=news§ion=000100010001&page=60&id=5841 (describing the case of one use of facilitated communication by a young autistic man). 217. For discussions of social justice lawyering, see generally Cause Lawyers and Social Movements (Austin Sarat & Stuart A. Scheingold eds., 2006); Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader (Susan D. Carle ed., 2005); Cause Lawyering: Political Commitments and Professional Responsibilities (Austin Sarat & Stuart A. Scheingold eds., 1997); Michael Novak, What is Social Justice?, 21 Cap. U. L. Rev. 877 (1992); see also Sen, supra note 126, at x (“‘Justice’ is ultimately connected with the way people's lives go, and not merely with the nature of institutions surrounding them.”).

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people with disabilities (including people with cognitive disabilities or mental illness) are fully competent to make decisions for themselves. Many lawyers throughout their careers will have one or more clients with a disability, who, due to age or other factors, may be of questionable competence. Lawyers must learn the rules of their respective jurisdictions with respect to how to proceed in the representation of clients whose competency may be questioned. Each jurisdiction has its own rules on the topic within the general state professional responsibility rules. 218 Lawyers must also understand the difference between a person with a disability for the purpose of disability rights laws and a person who is considered disabled and unable to work for the purpose of receiving disability benefits. Further, the issue of one’s disability is relevant to discussions in professional responsibility courses with respect to the question of “who is the client.” In some cases, where the client has a cognitive impairment, someone else other than the client, such as the person’s parent, may pay the lawyer’s fees. In such cases, to whom does the lawyer owe her duty of client loyalty? Who is the client? In cases in which the client is a child seeking educational services under the Individuals with Disabilities in Education Act (IDEA) and the parent has a different view from the child regarding the services the child should receive, does the lawyer advocate for the position of the child or the parents? What duties are owed by the lawyer to the child and to the parent or parents in such cases? And what if the parents disagree among themselves?219 Further, lawyers who open their doors to the public are providing services as a public accommodation and, therefore, are required not to discriminate against people with disabilities under Title III of the Americans with Disabilities Act (ADA). Thus lawyers, like all providers of public accommodations, are required to provide modifications for clients and visitors with disabilities who come to

218. See Model Rules of Prof’l Conduct R. 1.14 (2009) (discussing the obligations of a lawyer when his or her client shows signs of “diminished capacity”). 219. In Winkelman v. Parma City School District, 550 U.S. 516 (2007), the Supreme Court was asked to decide whether parents have any rights independent from the rights of their student-children under the Individuals with Disabilities in Education Act (IDEA). Without deciding the substantive issues in the case related to the child’s educational services, the Court held that the IDEA created a set of independently enforceable rights in parents. See The Supreme Court—Leading Cases: Parental Rights, 121 Harv. L. Rev. 365, 367 (2007).

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their offices, including physical access, accessible restrooms, and sign language interpreters for Deaf or hard-of-hearing clients.220 Likewise, lawyers who employ 15 or more employees, like all employers of 15 or more employees, are prohibited from discriminating in the terms, privileges, and benefits of employment under Title I of the ADA.221 This means that lawyers, just like any other employer covered by the ADA, may not discriminate against employees who are disabled during the hiring process, once they are hired, or if they become disabled in the course of employment. Lawyers also must learn what types of questions they may or may not ask when interviewing law students and lawyers for jobs at their offices and what types of accommodations they must provide to lawyers or other members of their staff who have disabilities.222 The issue of accommodations for lawyers with disabilities in the workplace has become so important nationally that in July 2006, the EEOC issued its first professionalspecific rule on the topic of accommodations in the workplace for lawyers with disabilities. 223 The existence of this EEOC guidance supports the view that law students should be made aware of their rights as lawyers with disabilities under the ADA, as well as their obligations towards lawyers with disabilities under the ADA.

4. International Law Courses and Programs A recent trend in the academy, including in many law schools, is to “internationalize” the curriculum.224 As a result, many

220. 42 U.S.C. §§ 12181–12189 (2006); 28 C.F.R. §§ 36.101–36.102; 36.104 (2010). 221. 42 U.S.C. § 12112 (West 2005 & Supp. 2010). 222. For more information about employment practices under the ADA, see JAN: Job Accommodation Network, http://askjan.org (last visited Nov. 11, 2010), a service of the U.S. Office of Disability Employment Policy of the U.S. Department of Labor. 223. See Reasonable Accommodations for Attorneys with Disabilities, U.S. Equal Emp. Opportunity Commission, http://www.eeoc.gov/facts/accommodationsattorneys.html (last modified July 27, 2006). 224. See generally, e.g., James R. Maxeiner, Learning from Others: Sustaining the Internationalization and Globalization of U.S. Law School Curriculums, 32 Fordham Int’l L.J. 32, 33 (noting that, today, “it is no longer a question of whether U.S. law school curriculums will be internationalized, but how”); see also David M. Trubek et al., Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 Case W. Res. L. Rev. 407, 457 (1994) (discussing internationalization of the legal field in general). Moreover, a quick Google search of the term “internationalization of the curriculum” resulted in 146,000 related “hits.” A

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law schools are now introducing international and global dimensions into the content of courses and course materials.225 Like other areas of law, disability is ripe for “internationalization.” Indeed, one could say that disability law itself has become globalized. 226 Since 1981, when about 400 people with disabilities, from rich and poor countries, from various educational, class, racial, ethnic, religious, and linguistic backgrounds met in Singapore to form Disabled People’s International (DPI), the issue of disability has gained international attention.227 The turning point in the globalization of disability law came, however, on December 19, 2001, when the United Nations General Assembly adopted Resolution 56/168 establishing an Ad Hoc Committee to consider “proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities . . .”228 This Ad Hoc Committee included representatives of over 40 countries and over 400 different NGOs and Disabled Peoples’ Organizations (DPOs). 229 Five years later, nearly to the day, on December 13, 2006, the United Nations General Assembly adopted by consensus a landmark treaty on the Rights of Persons with Disabilities and an Optional Protocol.230 The Convention entered into

search of “internationalization of law” resulted in 569,000 “hits,” and “internationalization of legal education” resulted in 64,300 “hits.” 225. See, e.g., Toni M. Fine, The Globalization of Legal Education in the United States, in The Internationalization of the Practice of Law 329 (Jens Drolshammer & Michael Pfeifer eds., 2003); The Internationalization of Law and Legal Education (Jan Klabbers & Mortimer Sellers eds., 2008); Simon Chesterman, The Evolution of Legal Education: Internationalization, Transnationalization, Globalization, 10 German L.J. 877 (2009); Teresa C. Stanton, Globalization and the Internationalization of Legal Education in the United States: An Annotated Bibliography, 29 Legal Reference Services Q. 23 (2010) (all discussing the internationalization of legal education). 226. See Kanter, supra note 71, at 241–42. 227. See Barnes, Exploring Disability, supra note 56, at 170–71. 228. Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, G.A. Res. 56/168, U.N. Doc. A/56/583/Add.2 (Dec. 21, 2001). 229. Kanter, supra note 143, at 289 n.8. Disabled People’s Organizations (DPOs) are organizations that are directed by people with disabilities and in which a majority of the members are people with disabilities. NGOs are not governed by people with disabilities. 230. Id. at 287. See also U.N. Enable website, Convention on the Rights of Persons with Disabilities, supra note 177 (The Optional Protocol gives individuals and groups the right to seek redress for violations of rights under the Convention directly to the monitoring body, after exhaustion of domestic remedies).

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force on May 3, 2008. As of the writing of this article, 147 countries have signed the Convention, and 96 countries have ratified it. 231 Both before and since the adoption of the Convention on the Rights of People with Disabilities by the United Nations in 2006, numerous countries had embarked on initiatives to draft their own domestic disability laws.232 These domestic disability laws provide a glimpse into how a country views disability and how people with disabilities are treated within their respective countries. Disability, therefore, becomes a topic through which to explore not only international and comparative law and international relations, but also, more fundamentally, the meaning of difference and justice for disadvantaged groups within a given society. In this sense, the internationalization of disability law within the law school curriculum provides students with an opportunity to explore the meaning of equality from various cultural perspectives. Further, it places our own civil rights tradition within a larger international human rights context. Disability also allows us to explore the difference, for example, between the development of international human rights jurisprudence and our own U.S. tradition of civil rights. Human rights may be distinguished from civil rights in that a human right is a claim each person has, by virtue of being human, to those conditions and resources that are fundamental to life and dignity. Human rights encompass an array of political, social, economic and cultural rights, as recognized by international bodies such as the United Nations. Moreover, human rights do not need to be specifically granted, nor can they be taken away; they exist for each person, regardless of the attitudes or laws that govern a country. By contrast, civil rights are given to each citizen (or resident) by the government. They include laws, such as our own Americans with Disabilities Act, that are designed to implement and enforce human rights. The ADA is one example of a civil rights law that defines the means by which people with disabilities may claim their human rights to equality, inclusion, and participation in society. Moreover, by exposing students to the different international and comparative disability law models, we can explore the way in 231. Convention on the Rights of Persons with Disabilities, United Nations Treaty Collection (Nov. 11, 2010), http://treaties.un.org/pages/ViewDetails.aspx? src=UNTSONLINE&tabid=2&mtdsg_no=IV-15&chapter=4&lang=en# Participants (figures may change). 232. See Kanter, supra note 71, at 248–52.

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which disability is constructed in various contexts. As we examine, for example, the application of human rights principles to disability, we raise the more complex questions of who defines human rights for whom. An assessment of human rights progress or violations though the lens of Disability Legal Studies requires, for example, an examination of the social and cultural construction of disability, including, primarily, resisting the overpowering medicalization and pathologization of disability. Disability Legal Studies, in the context of international law, allows us the opportunity to view the complex ways that economic relations, cultural meanings, social practices, and institutional settings participate in the disablement of persons in different societies throughout the world. As such, it reveals that the many barriers that people with disabilities face in various countries of the world are rooted not in their own limitations, but in the structures and institutions of their societies. An examination of these issues is relevant not only to disability rights, but also to an understanding of the many people and perspectives in the world around us.

5. Clinics and Externships Disability law is also particularly well-suited for the development of professional skills and training that is done in clinic and externship settings. Disability law, infused with a Disability Legal Studies perspective, challenges students to rethink how the norm of able-bodiedness and the standard of “the reasonable person” implicate power, privilege, race, and class in society and often work to the disadvantage of their clients with disabilities. Not only is the subject matter of disability a rich topic of exploration in clinical and externship practices, but disability cases also provide a particularly good type of legal experience for students. Disability cases expose students to a range of skills and areas of law practice that few other subjects do. For example, disability-related clinic cases may involve large institutional cases, such as those brought to benefit a class of homeless disabled people 233 or people with disabilities in

233. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 289 (1984) (this case was brought by the author and clinic staff of the Georgetown University Law Center’s Institute of Public Representation).

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institutions,234 as well as smaller, individual cases seeking redress for employment discrimination, educational services under the IDEA, or social security disability benefits. In the course of representing clients in such cases, students gain experience in drafting pleadings, arguing motions, engaging in negotiations, fact gathering, and investigation. Clients with disabilities also present law students with unique opportunities to challenge their own assumptions, biases, and fears about people who are different from themselves.235 Many of the students who enroll in a clinic or externship may have never spoken directly to a person with a disability, even though today, most law students have attended college, high school, and even grade school with students with disabilities. Many law students may harbor assumptions and prejudices about people with disabilities, which are often based on fear. The late Allan H. Macurdy wrote poignantly about the fear of people with disabilities: An observer may be made uncomfortable in the presence of an individual with a disability not simply because that person looks “different,” but also because of an aversion to thinking about that person’s life as if it were the observer’s own life. In other words, because the observer wants to avoid thinking about what to him is a terrible life situation, his fear requires that he avoid—or not see—individuals with disabilities. This perception of tragedy, as expressed in comments such as “I’d rather be dead than live like that,” can be seen as outward manifestations of the observer’s psychological process of fear-avoidance. Not only is there fear of disability, fueled by stereotype, but there is also a fear of acknowledging another’s pain, of recognizing someone else’s courage, and of comprehending the injustices others endure as people of feeling who are marginalized and devalued. We are afraid of feeling, of needing and care, and of change because they all require the risk of admitting our vulnerability, our interdependence, and our need

234. John S., et al v. Cuomo, No. 90-CV-294, 1999 WL 592693 (N.D.N.Y. Jul. 29, 1999) (case was brought by the author, as director of the Syracuse University Public Interest Law Firm, and Legal Service of Central New York). 235. See Patricia A. Massey & Stephen A. Rosenbaum, Disability Matters: Toward a Law School Clinical Model for Serving Youth with Special Education Needs, 11 Clinical L. Rev. 271, 328 (2005) (noting that law school clinics increase disability awareness among law students).

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to reject the presence of emotion in legal decision making.236 Even the most open-minded students may express fear and discomfort about interviewing potential clients who are blind or Deaf, use a wheelchair, or are labeled with a cognitive, neurological, or psychiatric impairment. The clients of law school clinics provide students with opportunities to examine their fears and assumptions about people who may be “different” from themselves because of the different way they may hear, see, walk, talk, or think. A colleague at Syracuse University College of Law, Professor Michael Schwartz, directs the Disability Rights Clinic. He is the only Deaf law professor in the U.S. and explains that most of his clinic students have never experienced using a sign language interpreter to communicate with a Deaf person, not to mention a Deaf professor or D/deaf clients. But in the course of their clinic experience, the students learn how to inquire of the D/deaf client what the client desires as an appropriate accommodation, such as a sign language interpreter; to request an interpreter in order to speak to the client; and, to use the interpreter appropriately during meetings by being sure to speak to, and look at, the client directly, rather than at the interpreter.237 Similarly, a student representing a client who is blind is forced to think about his or her assumptions about communicating with someone who cannot see. For example, if a student is representing a client in a case alleging discrimination based on the client’s low vision or blindness, how will the student inform the client of the contents of a confidential letter from the lawyer to the client if the client cannot see the text? If the client wants to let a friend or relative read the letter to him, will the student lawyer be able to explain to the client that once the client reads the letter to someone else, it is no longer covered by the attorney-client privilege or the confidential relationship between the lawyer and client? In such cases, the student learns not only how to communicate with the client, but also the importance of the lawyer-client relationship and how to protect it. Such lessons are important for the student in his or

236. Macurdy, supra note 81, at 450–51. 237. Personal communication from Professor Michael Schwartz, Dir., Disability Rights Clinic, Syracuse Univ. Coll. of Law (May 2007).

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her future dealings with all clients, including those with or without disabilities.238 The experience of representing clients with disabilities in a law school clinic also presents opportunities for students to examine their own stereotypes about people with disabilities as well as society’s assumptions about who is normal and who is not. Indeed, students often internalize the “unstated norm”239 of the body as vital, youthful, flawless, and above all, able-bodied. So when law school clinic students meet a client whose body or abilities do not conform to that invisible norm, they soon realize (with the help of their supervising attorney) that few people actually measure up to the idealized norm, and, perhaps more importantly, that the norm itself may be socially constructed. As a result of this experience, few students come away from a clinical experience in which they represented one or more clients with a disability thinking the same way about disability, and even society, as they did when they first entered law school. Clinic students also learn that clients with disabilities are not a homogeneous group and that each client with a disability comes with his or her own strengths and weaknesses, likes and dislikes, fears and competencies, personalities and behaviors. The experience in a disability clinic or externship also may foster conversations and collaboration between clinic and externship students and between clinic students and non-clinic faculty from the

238. A law school clinic in New South Wales has begun to require education about disability within their law school clinics. The Disability Council of New South Wales has recommended that law school clinic staff (as well as staff at legal aid offices) undergo mandatory, skills-based disability awareness training. This is considered especially important not only for legal staff and students, but also for administrative staff as well. See Disability Council of N.S.W., Access and Participation for People with Disabilities in Contact with the Justice System: A Question of Justice 13–14 (2003), available at http://www.disabilitycouncil.nsw. gov.au/archive/03/justice.pdf. The Law Society of England and Wales has proposed the following statement of the core general characteristics and abilities that all lawyers should have on day one in practice to “[d]emonstrate the capacity to deal sensitively and effectively with clients, colleagues and others from a range of social, economic and ethnic backgrounds, identifying and responding positively and appropriately to issues of culture and disability that might affect communication.” Frances Gibson, Access to Justice for People with Disabilities: Response of the Clinic 6–7 (La Trobe Law School Legal Studies, Research Paper No. 2010/3, 2010) (citing The Law Society, Second Consultation on a New Training Framework for Solicitors, § 4, ¶ 46 (Sept. 2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1540581). 239. Minow, supra note 7, at 51.

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law school and other disciplines as well. For example, in Spring 2009, clinic students participated in a new course I taught with a professor from the School of Education on Inclusion in Education. Several students in this course were also enrolled in the Disability Rights Clinic and represented clients in special education cases in the course of the semester. Although we never discussed clinic cases in our classes (due to the confidential nature of the case information), the students in the class had an opportunity to learn about special education law through classroom discussions, and clinic students were encouraged to pose general questions, in the form of hypotheticals designed to preserve client confidentiality, related to issues of law in their cases.

IV. CONCLUSION Disability Studies has emerged within the academy as a new multi-disciplinary field. It requires us to consider how society excludes people with disabilities, not because of their own limitations, but because of the way in which society itself is structured and operates. From this viewpoint, it is not as if there are no differences among people who are Deaf, or blind, or have other impairments; nor does this view deny the suffering and pain that people with disabilities experience. Instead, Disability Studies allows us to explore how to mitigate or even eliminate the social outcomes of differences with an awareness of the role that power plays in shaping the development of laws and legal rights. Disability Legal Studies, then, presents to the law and legal education both challenges and opportunities. It challenges legal scholars to critically view the place of disability within the legal system and the legal academy, as well as society generally. By viewing law through the lens of Disability Studies, it challenges us to examine disability, like race, gender, class, and sexuality, as a social and political construct, derived from a history of stigmatization and exclusion. It also challenges us to consider the complex ways in which our system of laws, government, social structures, institutions, culture, and customs contribute to the disablement of persons in our own society and in societies throughout the world. Disability Legal Studies also presents opportunities. As part of the larger field of Disability Studies, Disability Legal Studies, provides legal scholars the tools to develop a disability critique of the law and to explore the role and manifestations of ableism in social practices and institutions that “portray people with disabilities as

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useless, marginal, abnormal, a burden on society, and perhaps most offensively, as living a life that is not worth living.”240 It also provides the context in which to deconstruct and reconstruct the meaning of disability through investigating the social construction of disability as well as the power structure that supports and enhances ableism. Disability Legal Studies, therefore, has much to offer the law and legal education. It provides theoretical tools as well as advocacy strategies to challenge our cultural norms that have resulted in the creation of legal, physical, and attitudinal barriers to inclusion of people with disabilities in society. As such, it has the potential to expose us and our students to new areas of academic inquiry. In addition to questions posed by Disability Studies such as, what does it mean to be normal? Disability Legal Studies poses further questions, such as: How does and should the law respond to differences among us? How can we challenge the privilege afforded to the able-bodied norm within the legal system? “Who decides the answers to these questions? And what do the answers reveal?” 241 A first step in responding to these questions is to increase the visibility of people with disabilities within the academy itself.242 At

240. 241. 242.

Mor, supra note 135, at 69. See Kudlick, supra note 10, at 1. In a study on disability in law school, Alan H. Macurdy observed, The most significant impression left from this study is the degree of invisibility faced by individuals with disabilities in the legal system. People with disabilities, if judged by the casebooks we use to educate young lawyers, play no role, have no legal interests, engender little substantive law, and need to be locked away as dangerous or vulnerable. The legal system, to be sure, reflects the society at large. Invisibility is a hallmark of the disability experience in America, from retail settings to restaurant tables to street encounters. Macurdy, supra note 81, at 449. And when people with disabilities are seen in the legal literature, they are generally portrayed “as victims of affliction who must be cured, helped to overcome their ‘deficiencies,’ cared for and pitied.” These images together “with rare glimpses of ‘extraordinary’ people with disabilities who,” with supernatural strength appear successful in sports or other feats, [leave] most with a false image of America's disabled citizens and encourages continued oppression. Information on people with all kinds of disabilities, their cultures, their needs, issues and concerns must be infused into all areas of university study. Only then will Americans with disabilities be accorded full recognition as equals and be included in housing, transportation, places of public accommodation and recreation,

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Syracuse University, we are working to nurture Disability Studies as a multi-disciplinary field, to increase the number of students, faculty, and staff with disabilities within our community, and to require the university to improve access and accommodations, with the goal of creating a community of inclusion for all. Much work still needs to be done. But such efforts are well worth it. With such changes, our universities, as well as society as a whole, will benefit from the participation of people with disabilities in our classrooms, our neighborhood, and in our lives.

educational programs and the workforce alongside their nondisabled peers. Bryen & Shapiro, supra note 8, para 7.