Kimani Paul-Emile, Georgetown Law Review, 2018

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. {snip}

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. {snip}

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.

{snip} 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.

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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.

{snip} 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. {snip}

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{snip} 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, education, 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. {snip} 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.

{snip} 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.

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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.