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The Law: What's Disability Studies Got to Do with It or An Introduction to Disability Legal Studies

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Abstract

In this article, the author invites legal scholars to consider how the field of Disability Studies relates to law, by creating a new field of Disability Legal Studies. While Disability Studies applies social, cultural, historical, philosophical, and humanities to the place of disability in society, Disability Legal Studies extends these perspectives to the particular role of disability within the legal system and legal studies. Although disability is central to many issues in law, it is generally absent from legal scholarship and classroom discussions. The author suggest ways in which law faculty may incorporate not only disability law-related cases, but also a Disability Legal Studies perspective into their scholarship and courses.
Electronic copy available at: http://ssrn.com/abstract=1822439
C
OLUMBIA
H
UMAN
R
IGHTS
L
AW
R
EVIEW
THE LAW: WHATS 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
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ITORS
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; Co-
Director, 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 kantera@law.syr.edu.
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).
404 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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
2011] DISABILITY LEGAL STUDIES 405
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 theory
6
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
406 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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).
2011] DISABILITY LEGAL STUDIES 407
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 &
408 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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 self-
determination. 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)).
2011] DISABILITY LEGAL STUDIES 409
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).
410 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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.
2011] DISABILITY LEGAL STUDIES 411
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)).
412 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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).
2011] DISABILITY LEGAL STUDIES 413
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.dsq-
sds.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).
414 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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 self-
elimination 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.
2011] DISABILITY LEGAL STUDIES 415
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).
416 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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).
2011] DISABILITY LEGAL STUDIES 417
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 Fiedler
36
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
Goffmans 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
418 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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.
2011] DISABILITY LEGAL STUDIES 419
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).
420 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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.
2011] DISABILITY LEGAL STUDIES 421
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 ever-
increasing 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).
422 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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
2011] DISABILITY LEGAL STUDIES 423
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
424 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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 working-
age 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
2011] DISABILITY LEGAL STUDIES 425
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).
426 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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
2011] DISABILITY LEGAL STUDIES 427
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.dsq-
sds.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.
428 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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
2011] DISABILITY LEGAL STUDIES 429
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.
430 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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).
2011] DISABILITY LEGAL STUDIES 431
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
Film
94
and literature
95
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.
432 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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, cross-
examine 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.
2011] DISABILITY LEGAL STUDIES 433
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.
434 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
“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.
2011] DISABILITY LEGAL STUDIES 435
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).
436 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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.
2011] DISABILITY LEGAL STUDIES 437
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).
438 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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)).
2011] DISABILITY LEGAL STUDIES 439
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 bylaw. 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).
440 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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 rule-
skepticism). 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 Whats Left of Theory? 40
(Judith Butler et al. eds., 2000); David Kairys, The Politics of Law : A Progressive
2011] DISABILITY LEGAL STUDIES 441
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.
442 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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).
2011] DISABILITY LEGAL STUDIES 443
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).
444 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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-papers-
feminist-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.
2011] DISABILITY LEGAL STUDIES 445
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).
446 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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
2011] DISABILITY LEGAL STUDIES 447
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).
448 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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 socio-
economic 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”).
2011] DISABILITY LEGAL STUDIES 449
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.
450 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
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