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Excerpted From: Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale Law Journal Forum 916 (June 30, 2021) (201 Footnotes) (Full Document)

JasmineEHarrisReginald Latson, known as “Neli,” sat in the grass in front of his local public library in Stafford County, Virginia, waiting for the building to open. While he waited, a “concerned citizen” called the local police department about a suspicious person with a “hoodie” perhaps “with a gun” who was “loitering outside the library.” Latson, an unarmed eighteen-year-old, had done nothing illegal. When the police officer arrived and ask him his name, he did not answer. Instead, believing he was in danger, Latson “responded with a 'fight or flight’ reaction.” The officer arrested Latson and the Commonwealth of Virginia charged him with felony assault on a law-enforcement officer, for which he received a sentence of more than ten years in prison.

The prosecutor gave short shrift to claims that the charges and noncompliant behaviors documented by the officer were manifestations of Latson's autism, preferring to frame disability as a “convenience.” In Virginia, Stamper v. Commonwealth precluded Latson's lawyer from presenting evidence of Latson's disabilities--lay or expert testimony, documentary testimony, all prohibited--to contextualize the facts presented at Latson's bail hearing and criminal trial. Furthermore, while detained, the corrections officers also declined to acknowledge Latson's disabilities and denied him necessary accommodations. Officers subjected Latson to prolonged restraints and seclusion; for example, he spent 182 out of a total of 243 days (approximately eight months) in solitary confinement for up to twenty-four hours per day.

Neli Latson is a Black, autistic man. How do we make sense of the role of race and disability in the discrimination experienced by Neli? This Essay argues that current comparative and intersectional lenses offer an incomplete picture of the nature of the harm and how best address it. While intersectionality certainly captures Neli Latson's experience by shifting the focal point of analysis to the cross-sections of race and disability (Neli's experience as a Black, autistic man), it does less work as a diagnostic and prescriptive lens. In other words, intersectionality tells us to focus on all identities and how they come together to form a distinct, new type of experience of discrimination. But it does not, in the case of race and disability, tell us about the source of intersectional marginalization or the tension between identity labels in communities of color--all necessary insights to help design more accurate legal remedies.

Aesthetic theories of discrimination, this Essay contends, can supplement the vagaries surrounding intersectionality as an analytical lens to understand race and disability. First, an aesthetics lens shows how deeply rooted biases mark people of color with and without disabilities as deviant, incompetent, and unequal. These biases trigger affective responses that, at first blush, appear to be biological and visceral when, in fact, they are the product of centuries of structural subordination. Second, aesthetics help explain why norms of race and disability together are especially resistant to change. Third, aesthetic theories surface a misplaced faith in training and education as a prescription for inequality, particularly in the context of the criminal-justice system.

This Essay proceeds in three parts. Part I offers a descriptive account of the existing legal scholarship on race and disability. Part II then uses the opening example of Neli Latson to explain what is missing from the current scholarship. Part III argues that aesthetic and affective theories of discrimination offer a unifying lens that further develops the meaning of intersectionality in the context of race and disability. I then apply an aesthetic lens to Neli Latson's case to begin to build a broader remedial framework for intersectional discrimination. I conclude with a few questions to consider as legal scholars continue to cultivate critical disability frameworks in law.

[. . .]

The growing body of scholarship focused on race and disability signals a new direction for critical legal scholarship. This intersectionality revolution has only scratched the surface in disability law and requires further theorizing. This Essay begins a broader scholarly agenda in this arena. Aesthetics theories of discrimination offer a useful lens to wrestle with both race and disability as a common point of analysis and as a diagnostic lens to understand how society has constructed disability and racial markers and has used them against the other.

I want to share one concluding question, the answers to which can further advance critical race and disability justice: how do we track race-disability (and other axes of) intersectionality in law? Disability data are hard to come by, in part, because of an association of disability with medical data and, thus, health privacy laws. The need for intersectional public data collection and dissemination could not be more important. Racial and disability justice are at the forefront of the major issues of the day--police violence, coronavirus, access to healthcare, gig employment, and living wages. Calls for standardized intersectional data collection remain largely unheeded, but the regular collection and public dissemination creates opportunities for future research and public accountability in policing, healthcare, and employment.

Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California--Davis School of Law; J.D., Yale Law School; A.B., Dartmouth College.

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