Excerpted From: Jamelia Morgan, On the Relationship Between Race and Disability, 58 Harvard Civil Rights-Civil Liberties Law Review 663 (Summer, 2023) (367 Footnotes) (Full Document)


JameliaNMorganAre humans to be denied human rights? Are persons after all not to be persons if they are physically disabled? Are members of the community to be robbed of their rights to live in the community, their certificates cancelled upon development or discovery of disability? These rhetorical questions, the hallmarks of crusade and reform throughout American history, have in our generation become the plea of the disabled as well. As with the Black man, so with the blind. As with the Puerto Rican, so with the post-polio. As with the Indian, so with the indigent disabled.

Within the field of antidiscrimination law, a question has long perplexed scholars and commentators: what is the relationship between race and disability? Disability rights advocates have for decades drawn analogies between race discrimination and disability discrimination. Indeed, the excerpt from legendary legal scholar Jacobus tenBroek is one of the most iconic formulations of the analogy between racial and disability discrimination.

Comparisons between race and disability (and racial and disability discrimination) showed up not only in how legal injuries were framed, but also in how legal victories were described. After the most comprehensive federal disability law, the Americans with Disabilities Act (ADA), was passed in 1990, it was labeled by some of the leading legislators responsible for its enactment as the “emancipation proclamation” for people with disabilities. Olmstead v. L.C., one of the Supreme Court's watershed disability-rights cases, has been heralded as the Brown v. Board of Education for disabled people. Comparisons surfaced in response to opposition to the Americans with Disabilities Act. Indeed, not long after the passage of the ADA, resistance to, and rollbacks of, the expansive protections under the law began in earnest. In response, disability law scholars shifted their focus to defending the legitimacy of the ADA and, in particular, its reasonable-accommodation provision as an antidiscrimination law. Relying on the “minority model” framework, many of these scholars identified similarities between racial and disability-based discrimination in their defenses of the ADA, drawing out similarities “between disability oppression and the prejudice and discrimination experienced by racial and ethnic minority groups, particularly by African Americans.”

Comparative accounts of race and disability have provided valuable rhetorical appeals for social movements, but they are not up to the task of illuminating and remedying key issues implicating race and disability discrimination today, particularly the problems of police violence, mass criminalization, and mass incarceration. Though comparative accounts of race and disability have been part of social movements seeking civil rights and legal protections for people with disabilities, it has not led to the recognition of the interests and challenges affecting all within this group. In particular, some critics maintain that the disability-rights movement has been--and remains to this day--too focused on the experience of white disabled people, contributing to marginalization, or even erasure, of the experiences of disabled people of color. As Angela Frederick and Dana Shifrer note, early on in the movement for disability rights “[t]he focus on independence and legal rights ... reflected the cultural values of middleclass [sic] white Americans and emphasized solutions to disability injustice that most benefited those with social class privilege and those with clear-cut experiences of discrimination on the basis of the singular status of disability.” Both scholars called for an intersectional approach to race and disability to combat these forms of erasure. In recent years, activists and organizers in disability-justice movements have raised similar critiques, charging not only white-led disability-rights movements with failing to include racial-justice issues on their agendas, particularly those issues relating to policing and mass incarceration, but also the Movement for Black Lives with failing to recognize disability rights concerns in their platform, “Vision for Black Lives.” Activists have argued for an intersectional approach to issues implicating race and disability.

Though legal scholars for their part have not ignored race and disability, they have largely focused on the similarities and differences between the two, rather than on their interconnectedness. Furthermore, even though scholars recognize that there are pressing social problems that implicate questions of race and disability, there is room for more comprehensive theorizing at the intersection of race and disability. Deeper analysis rooted in the history and social construction of race and disability would benefit the fields of race law, Critical Race Theory, and disability law in particular. In race law and Critical Race scholarship, discussions on disability tend to frame disability as a metaphor for racial discrimination or oppression. Robust and critical engagement with disability is relatively limited, if acknowledged at all. Critical Race scholarship does not substantially engage with structural analyses of disability, which is perplexing given its emphasis on other structural forms of social subordination, such as structural racism, patriarchy, homophobia, and class oppression. To put it more directly, there is limited engagement with ableism, disability theory, and the role of law in producing disability-based subordination in Critical Race scholarship. Similarly, discussions of structural racism are limited in disability law scholarship, where engagements with race skew more toward comparative approaches between race and disability. Further, disability law scholarship rarely includes sustained engagement with structural racism and its connections to disability discrimination. Taken together, Critical Race scholars and disability law scholars have yet to fully engage with how structural racism and structural ableism work to exacerbate social harms, violence, and discrimination for individuals who are both disabled and negatively racialized. In short, these disciplines stand to benefit from a more comprehensive analysis of race and disability. Intersectionality offers such an analysis.

This Article draws from historical and sociological accounts of race, disability, and their intersections, beyond the oft-disused (and important) eugenics period, to include laws and policies related to chattel slavery, convict leasing, and immigration laws in the late nineteenth century and early twentieth century. This Article weaves together genealogies of race and disability that illuminate the legal and social meanings of race and disability, as well as racism and ableism. It offers the first comprehensive account in legal scholarship about how race and disability, and racism and ableism, were co-constructed through law; in so doing, it provides a sustained intersectional analysis of race and disability.

This Article offers a descriptive account of race and disability across American law and policy before turning to a discussion of how law worked to reinforce and legitimize racism and ableism. In Parts II and III, I examine laws and policies where racist meanings were assigned to disabilities and ableist meanings to racial identities. Through the court opinions, legislation, and policies discussed, I examine the ways in which judges, legislators, and policymakers distinguished “able” bodies and minds from “disabled” bodies and minds. In doing so, they infused racial meanings into social meanings of disability and infused ableist meanings into social meanings of race. The sections demonstrate how race and disability were historically co-constructed through law and policy. They also demonstrate how ongoing forms of racism and ableism are mutually constitutive. Second, I argue that genealogies of race and disability illuminate how racism and ableism have colluded to produce, reinforce, and maintain the forms of social marginalization and subordination experienced by individuals who are both negatively racialized and disabled.

This Article then shifts to a discussion of the normative payoff that such in-depth theorizing at the intersection of race and disability provides. As I argue in Part IV, such grounding can and should inform how courts interpret race and disability discrimination claims under antidiscrimination laws, as well as constitutional claims brought by negatively racialized and disabled people. An intersectional analysis can better inform how courts interpret race and disability claims and facilitate greater recognition of the nature and extent of racial and disability-based subordination characterized in legal claims seeking legal redress. For example, surfacing race and disability genealogies, and their intersections, can provide a historical lens through which to analyze constitutional protections and remedies, particularly judicial review of disability classifications under City of Cleburne v. Cleburne Living Center, Inc., Congress' section 5 powers, and disability discrimination claims under the Americans with Disabilities Act. The Article concludes with proposals for how scholars and advocates can adopt intersectional approaches when litigating claims involving racial and disability discrimination, and more broadly, how advocates can better frame legal injuries and identify legal remedies that are more attentive to racism and ableism.

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That race and disability were not only each socially constructed, but also co-constructed has important implications for scholars and advocates deploying legal strategies for challenging racial and disability discrimination. Recognizing these connections offers opportunities for effective and comprehensive advocacy aimed at holding state and private actors accountable for unlawful acts of racial and disability discrimination. Scholars and advocates should acknowledge these overlapping meanings and understandings of race and disability and recognize the collusive nature of racism and ableism. It is imperative to do so as these interlocking ideologies of subordination-- and the material conditions they produce--contribute to the ongoing forms of violence and physical harm, as well as economic and social disadvantages, that disabled people experience today. Legal rights and remedies can prevent and rectify these harms--but not without intersectional approaches that accurately characterize the nature and scope of legal injuries necessary for identifying meaningful remedies.

Professor of Law and Founding Faculty Director of the Center for Racial and Disability Justice, Northwestern University Pritzker School of Law.