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Kimani Paul-Emile , Blackness as Disability?, 106 Georgetown Law Journal 293 - 364 (January, 2018) (445 Footnotes Omitted) (Full Article)

IKimani Paul Emiles 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 myriad specific ways. To be black means to face 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 polluted environments, being un- or under-employed, 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 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 tends to require plaintiffs to prove that perpetrators acted 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. Further, even the disparate impact cause of action, although 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 laws. Several statutes, most notably the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act), were drafted to remedy discrimination and structural inequality affecting individuals with disabling conditions. These laws do so by targeting stigma and identifying conditions that "substantially limit a major life activity." Moreover, through "reasonable accommodation" and "reasonable modification" mandates, disability laws shift antidiscrimination measures away from zero-sum battles over liability and blame toward balancing efforts to ensure full equality with any burden such efforts may impose.

This Article focuses on Title II of the ADA (Title II) and Section 504 of the Rehabilitation Act (Section 504), which I will refer to jointly as "disability law." I center these provisions in my analysis because of their scope and the breadth of their remedial mandate: together they bar discrimination against individuals with disabilities by all entities that receive federal funding, as well as all state and local government entities. In contrast to other provisions of the ADA, which focus on particular contexts, such as employment, the sweep of Title II and Section 504 extends beyond discrete areas to address the experience of exclusion and disadvantage in society writ large.

Unlike race law, disability law rarely requires aggrieved parties to show that the exclusion or harm they suffered was intentional--a showing of disparate impact 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 "one or more of the major life activities." Thus, disability law requires that even discrimination based on unacknowledged bias be addressed.

From a remedial perspective, disability law is explicitly disability-conscious and requires that disability be considered when remedies are devised. For example, 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 remediation costs. Ironically, the entire apparatus of contemporary disability antidiscrimination law better captures the nature of racial inequality than race law and offers 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 various combinations of particular physical, cultural, and linguistic features that Americans have been socialized to recognize and correlate with people racially designated in the United States 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 instead are 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 socio-cultural 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 may 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 example, 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 neurodevelopmental 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 enables 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 how social institutions, policies, and norms have been shaped consciously or unconsciously in a way that reflects this stratified notion of racial categories, and how being black, as a basic fact of daily life, now poses barriers to equality in employment, education, housing, medicine, and many other contexts. Race law, on the other hand, erases this history. It flattens racial difference and gives all race-based distinctions a false equivalence. This makes racial categories appear innocuous, neutral, and natural, rather than socially constructed and often fraught. Applying disability law's doctrinal framework and normative commitments to the problem of racial inequality forces us to see how blackness operates as a disabling condition, creates opportunities to rethink the discrimination and structural inequities that disable, and provides 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 United States history that has been largely overcome because of legal developments and social policies intended to increase access and opportunity. By recognizing blackness as a disability, we 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 learning disabilities to HIV/AIDS, diabetes, and asthma. Still, when we think about disability, we may 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 a dyscalculia, her difficulty with math may be disabling in particular settings, such as in school or in situations that requires her to engage in mathematical computation, but, as I will explain, 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, the relationship between blackness and disability becomes clear. Disability law allows us to do this. Once blackness is understood as disabling in many contexts and a marker of stigma around which virtually all social institutions were conceptualized and structured, we can see distinct legal solutions to the persistent and seemingly intractable problem of racial inequality.

Antidiscrimination scholarship has explored the potential utility of using a disability framework to address discrimination in other forms and contexts: some antidiscrimination scholars have compared and contrasted disability laws with race- and gender-based civil rights laws generally; others have applied disability laws to gender discrimination, and disability laws' norms to intimate association discrimination; while still others have relied upon aspects of disability laws to address race discrimination in employment. The literature, however, lacks any sustained endeavor to examine the broad theoretical and practical implications of using disability law to understand the meaning of race and respond to racial discrimination and structural inequality in contexts beyond the workplace, a gap this Article fills. The extensive reach of remedial innovations in Title II and Section 504--from "reasonable modifications" to mandated integration--allows for pragmatic solutions to the problem of racial inequality across significant areas of public life.

This Article proceeds in four parts.

Part I identifies the dominant forms of discrimination with which black people must contend today and outlines the flaws in race law that hinder its ability to effectively combat modern race discrimination.

Part II introduces laws from the disability context and discusses the overarching aims of disability antidiscrimination law, the social and medical understandings of disability embraced under disability law, and possible justifications for why Congress decided that meaningful equality means different treatment in the case of disability but not for race.

Part III shows how disability law provides a better approach to addressing race discrimination and structural disadvantage than current race law and illustrates how a blackness-as-disability model would work by applying it to two areas where race discrimination and systemic inequities have been particularly intractable problems: education and policing.

Part IV addresses the potential challenges and practical implications of the blackness-as-disability framework as well as expected benefits.

Ultimately, the move that I am making with this blackness-as-disability framework is more conceptual than doctrinal, and it serves two important purposes. First, it allows us to rethink our basic assumptions about racial categories by forcing us to consider the historical and contemporary contingencies of race. Second, this analysis makes explicit the inability of current race law to counter modern race discrimination and suggests possibilities for interpreting race doctrine in a way that better addresses the causes and consequences of discrimination and systemic disadvantage. Thus, 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.

Associate Professor of Law, Fordham University School of Law; Associate Director and Head of Domestic Programs and Initiatives, Center on Race, Law & Justice, Fordham University School of Law; Faculty Co-Director, Stein Center for Law & Ethics, Fordham University School of Law.