While the Civil Rights Act of 1964 was instrumental in counteracting overt forms of racial discrimination, the United States still has a long way to go to achieve racial equality. More subtle, yet no less invidious, forms of discrimination remain: racial profiling, unequal access to housing and medical care, implicit bias, and stereotyping are just some examples. These inequities, confronted daily, can become disabling to communities of color. And if these discriminatory practices are indeed disabling, then perhaps a radical new look at race law is in order.
Professor Kimani Paul-Emile is the exact scholar to provide a fresh perspective on racial discrimination. A foremost thinker and writer in the areas of law and inequality, race and the law, law and biomedical ethics, and health law, she helps lead Fordham Law’s Center on Race, Law & Justice. Her scholarship has been published widely, including a piece in the New England Journal of Medicine that has been viewed almost 125,000 times, placing it in the 99th percentile of articles in all medical journals. Paul-Emile has received a research award that enables faculty members to carry out original research to help resolve important policy and clinical dilemmas at the intersection of ethics and the life sciences. She has also been awarded a Public Health Law Research grant from the Robert Wood Johnson Foundation, the nation’s leading philanthropy for health and health care. She received a Ph.D. from New York University, a J.D. from Georgetown, and a B.A. with honors from Brown.
In this excerpt of “Blackness as Disability” 106 Georgetown Law Review (forthcoming in 2018), Paul-Emile argues that civil rights law and Supreme Court jurisprudence have not done a particularly good job of tackling modern-day racial injustice; instead, she proposes that to combat the disabling effects of racism, the profession should turn toward disability law.
IS BEING BLACK IN THE UNITED STATES TODAY A DISABILITY? This may seem a startling question, but it accurately reflects what Black, as a racial designation, is and was designed to be: disabling. Racial categories were created explicitly to serve as a caste system to privilege some and disadvantage others. Within this system, racial minority status was devised to limit opportunity, participation, and achievement, and it continues to do so in many areas of social and economic life.
This is particularly true for Black people, whose racial status is disabling in a myriad of specific ways. To be Black means facing increased likelihood, relative to Whites, of living in poverty, attending failing schools, experiencing discrimination in housing, being denied a job interview, being stopped by the police, being killed during a routine police encounter, receiving inferior medical care, living in substandard conditions and in dangerous and/or polluted environments, being un- or underemployed, receiving longer prison sentences, and having a lower life expectancy. These increased risks are not fully explained by income: Blackness in the United States has an independent disabling effect distinct from the effects of socioeconomic status.
Both race-focused civil rights laws and the Supreme Court’s equal protection jurisprudence, which I will refer to as “race law,” have not offered effective means of addressing race discrimination and systemic racial inequality. Although race law has been relatively effective at countering intentional discrimination, such as Jim Crow, it has failed to combat the predominant forms of discrimination that now harm minority populations: unconscious bias, stereotyping, and structural inequality—inequities rooted within social systems and institutions that create inequality in the absence of intentional discrimination.
As interpreted today, race law typically requires plaintiffs to prove that perpetrators act with malicious intent, but this misses the most common types of modern discrimination and does not begin to address structural inequality. Similarly, race law now tends to focus on colorblindness, conceptualizing all race-based distinctions as equally harmful, regardless of whether they are intended to perpetuate discrimination or remedy the effects of past discrimination. Together, the intent doctrine and colorblindness render race law radically inadequate to address the discrimination and cumulative disadvantage that impair the lives of Black people. And even the disparate impact cause of action, while more far-reaching, does not effectively attend to the now-dominant modes of race discrimination.
Understanding Blackness as disabling, however, brings to the fore a surprising new approach to addressing discrimination and systemic inequality that has been hiding in plain sight: disability law. A range of statutes, most notably the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act), which together I will refer to as “disability law,” were drafted to remedy interpersonal and structural discrimination against individuals with disabling conditions. Disability law does so by targeting stigma and addressing conditions that “substantially limit a major life activity.” Moreover, through “reasonable accommodation” and “reasonable modi cation” mandates, disability law shifts antidiscrimination measures away from zero-sum battles over liability and blame and toward balancing efforts to ensure full equality with any burden such efforts might impose.
Unlike race law, disability law does not require aggrieved parties to show that the exclusion or harm that they have suffered was intentional; discriminatory effect is almost always enough. Rather than focusing on malicious intent, disability law accepts the impact of even neutral actions, policies, and programs, directly confronting the ways in which social structures, institutions, and norms can “substantially limit” a person’s ability to perform “a major life activity.” It thus requires that even discrimination based on unacknowledged bias be addressed.
Understanding Blackness as disabling … brings to the fore a surprising new approach to addressing discrimination and systemic inequality that has been hiding in plain sight: disability law.
From a remedial perspective, disability law is explicitly dis- ability-conscious and requires that disability be considered when remedies are devised. Thus, the ADA’s reasonable modifications mandate makes clear that public and private entities must consider disability when removing barriers to access and opportunity. In keeping with this anti-subordination focus, disability law expressly prohibits so-called “reverse discrimination” claims, requires integration, and provides a mechanism for the allocation of costs attendant to remediation. Ironically, the entire apparatus of contemporary disability antidiscrimination law better captures the nature of racial inequality than race law, offering a more nuanced and effective way to confront modern race discrimination, including implicit bias and stereotyping.
I use the term “Blackness” in this Article to capture the combinations of physical, cultural, and/or linguistic features that Americans have been socialized to recognize and correlate with people designated racially in the U.S. as Black. Blackness, of course, is not, by itself, an impairment. However, disability law recognizes that many traits understood as disabling do not necessarily arise from a medical condition, but are instead simply traits that create disadvantage when combined with an inhospitable social or physical environment. This “social model” of disability offers a critical lens into the meaning, production, and cultural relativity of disability that is useful for thinking about race. For instance, it allows us to see how some disabilities are quite literally manifestations of sociocultural forces, as is the case with anorexia nervosa. It also illuminates the temporality of some conditions or traits understood as disabilities. Thus, a child now diagnosed with attention deficit disorder would have been characterized as hyperactive or unfocused a century ago. The social model also demonstrates that whether a trait operates as a disability may depend on one’s objectives. For instance, if one’s aim is to excel at reading, then dyslexia functions as a disability. Yet if one’s goal is to excel at causal perception—an ability necessary for success in many professions—then having dyslexia may be beneficial.
The social model of disability does not contest the idea that some disabilities are profoundly limiting, real, and meaningful consequences of biology, such as severe neuro-developmental disorders, degenerative medical conditions, or catastrophic brain injuries. Rather, the central and paradigm-shifting contention of this model, which was ultimately embraced by disability law, is that society is not neutral and that biases are built into its very structures, norms, and practices, which can then produce disability.
This understanding of disability should inform how we conceptualize race and racial inequality. Disability law’s appreciation of the constructed nature of some disabilities and its focus on groups that have long experienced subordination enable it to capture the historical meaning and contingencies of race in ways that race law does not allow. Racial categories, were created explicitly to establish hierarchies of difference. Disability law provides a mechanism for identifying the ways in which social institutions, policies, and norms have been shaped consciously or unconsciously in a way that reflects this stratified notion of racial categories, and how now, as a basic fact of daily life, being Black poses barriers to equality in employment, edu- cation, housing, medicine, and many other contexts. Race law, on the other hand, erases this history. In so doing, it flattens racial difference, giving all distinctions a false equivalence. This makes racial categories appear innocuous, neutral, and natural, rather than socially constructed and often fraught. Once race is stripped of all meaning and context, race law’s focus on intent and colorblindness seems to make sense. Applying disability law’s doctrinal framework and normative commitments to the problem of racial inequality forces us to see more clearly how Blackness operates as a disabling condition, and creates opportunities to rethink the discrimination and structural inequities that disable, while providing powerful tools to challenge them.
The notion of “Blackness as disability” may be troubling to some. This discomfort likely stems from popular perceptions of racial inequality and common misconceptions of disability. With respect to racial inequality, for some people, acknowledging the ways in which discrimination and structural inequities continue to negatively affect the lives of Black people raises uncomfortable questions about the privilege of Whites in relation to the status of Blacks. Indeed, an understanding of Blackness as a disabling condition challenges the standard notion that racial inequality is an unfortunate relic of U.S history that has been largely overcome because of legal developments and social policies intended to increase access and opportunity. To recognize Blackness as a disability therefore requires us to acknowledge the ways in which racial hierarchies and White privilege persist and are embedded within these laws, policies, and practices such that they reify the very inequities they seek to eliminate.
With respect to disability, black people have long had to contend with negative preconceptions and stereotypes about their abilities; therefore, an association with disability may be difficult for some people to accept. This concern, however, is misplaced, as it is based on antiquated, stigmatizing preconceptions of persons with disabilities. These negative preconceptions include perceiving individuals with disabilities as completely incapacitated, or assuming that they are impaired in all contexts and in ways that extend beyond their particular disability. As this Article shows, disability often affects only a discrete life function or a specific aspect of an individual’s existence. Disability can occur at any point in one’s life due to chance, age, illness, or accident, and disability exists on a spectrum that encompasses a broad array of conditions from mobility impairments and learn- ing disabilities to HIV/AIDS, diabetes, and asthma. Still, when we think about disability, we tend to envision the most extreme impairments and ignore the breadth of the category and the contextual ways in which many disabilities manifest. Thus, for a black person with dyscalculia, her difficulty with math may be disabling in particular settings, such as in school or in situations that require her to engage in mathematical computation, but her blackness may limit opportunity and advancement in virtually every aspect of her life, from education and employment to housing and political participation.
Disability also does not necessarily mean that an individual cannot function and contribute fully to society. Just as Judge David S. Tatel, who is blind, can serve a distinguished career as a judge on the D.C. Circuit Court of Appeals, and David Boies, who has dyslexia, can be recognized as one of the most esteemed litigators of our time, for many individuals, to have a disability simply means that such individuals have a particular barrier to reaching their full potential in society as it is currently structured.
When we stop thinking about disability in a pejorative, stigmatized way and acknowledge the reality and effect of structural race-based inequality, then the relationship between Blackness and disability becomes clear. Disability law allows us to do this. This framework offers a new—repurposed—paradigm for understanding how the law can address the way Blackness operates as a barrier to equality, while avoiding the doctrinal impasses that now plague race law, thereby enabling meaningful structural reform.