Abstract
Excerpted From: Natalie M. Chin, Centering Disability Justice, 71 Syracuse Law Review 683 (2021) (424 Footnotes) (Full Document)
In “explor[ing] the Black body in the context of whiteness,” George Yancy describes the confiscation of the Black body. He writes, “[t]his confiscation occurred in the form of the past brutal enslavement of Black bodies, the cruel and sadistic lynching of Black bodies, the sexual molestation of Black bodies on Southern plantations, the literal breeding of Black bodies for white exploitation and the unethical experimentation on Black bodies during the horrific 'Tuskegee Syphilis Study’.”
Yancy's historical references are entrenched in hundreds of years of white supremacist brutality and oppression. This concept of the confiscation of the Black body applies with equal truth today when examining disability through the lens of Blackness. The confiscation of the Black disabled “bodymind” is prevalent and enduring. Because of the historical and current permanence of white supremacy, it pervades even the best-intentioned policies and legislation.
The comparison of disability oppression to the experience of slavery and segregation of Black people in the United States is persistent across disability rights discourse that focuses on the ADA and its predecessor, section 504 of the Rehabilitation Act (Section 504). The Americans with Disabilities Act (ADA) has been called “an 'emancipation proclamation’ for [Americans] with disabilities.” In testimony before a House of Representatives subcommittee in support of the ADA passage, a white supporter commented:
What difference ... is the change from persons who were beaten to death because of their disabilities in the assumption that the evil spirits would leave them, to slaves who were beaten to death because they happened to be black and viewed by their persecutors as people who are lesser than they--four-fifths of a man, was it?
Further, analogizing disability oppression and slavery is simplistic, reductive, and reinforces the white disability narrative. Disabled enslaved, for example, were often “[f]orced to remain in slavery during emancipation and then placed against their will in makeshift almshouses and asylums” where they engaged in forced labor. Further, following the signing of the Emancipation Proclamation in 1862, slavery took on many different forms that resulted in the government-sanctioned brutality and segregation of Black people in the United States. These forms included sharecropping, lynching, Black Codes, and convict leasing. From around 1877 to the 1950s, governments enforced Jim Crow, and the Supreme Court validated laws that legalized segregation against Black people living in the United States.
This racism and disability discrimination analogy is often how race is incorporated into disability rights analysis. v. L.C., for example, is often heralded as the Brown v. Board of Education of disability rights. As one advocate described, Olmstead is as significant to people with disabilities as Brown v. Board of Education was to people of color. Yet, the fact that Louis Curtis, one of the plaintiffs in Olmstead, was a Black woman is erased in the litigation and historical references.
The invisibilization of disabled people who possess multiple marginalized identities reflects the single-issue disability focus norm that pervades disability advocacy. This erasure leaves little understanding of the role that identity (race, class, gender identity, sexual orientation, and others that Curtis may have claimed) played in Curtis' experience at the Georgia psychiatric institution and what, if any, role this erasure had in the litigation strategy. Rather, Curtis' identity was limited to her psychiatric and intellectual disability.
The future of disability rights requires advocacy and discourse that holds racism/ableism and interlocking systems of oppression at its center to better assess who is being left out of ADA advancements and why-- and what steps future disability rights strategies can take to more intentionally center racism/ableism in its framework. The absence of a critical racism/ableism consciousness framework in a disability rights strategy threatens the future effectiveness of the ADA. Litigation is a strategic and necessary tool used to advance protections under the ADA, but it has limitations with respect to remedies. By focusing litigation and advocacy on single issues, we may solve for one inequity while others abound. This strategy, as a consequence, creates a revolving door of inequities for Black people with disabilities and other multiply marginalized disabled people. Challenging the single-issue approach to litigation and engaging in a broader advocacy perspective or strategy is required in moving toward a racism/ableism disability framework.
Olmstead v. L.C. largely shaped the trajectory in the fight for disability rights over the past twenty-two years. This landmark case resulted in a cascade of litigation to hasten the closure of institutions and secure greater access to community-based supports and services for people with disabilities in a range of areas that include housing, mental health support, education, and employment support. However, the execution of Olmstead--and who is benefitting under the ADA--presents a more complex narrative when examined through the prism of “the racialized experience of disability.” This article focuses its inquiry on anti-Black racism/ableism. Ableism, at its base, “is oppression faced due to disability/impairment (perceived or lived), which not only signals disability as a form of difference but constructs it as inferior.” Through this prism, for many Black people with disabilities and Black deaf/ disabled people who are subjugated by class, gender, sexual orientation, and other constructs, the promises of the ADA are failing. The failure of the ADA is most exposed when examined through the experiences of deaf/disabled people and persons who are categorized with intellectual, developmental, cognitive, and/or psychiatric disability.
In analyzing disability as a shared experience by all disabled people, advocacy and discourse erase how the ADA is executed in ways that fail to account for the structural inequalities that overlap to compound and create a reconstituted form of racism/ableism against disabled Black, Indigenous, and other People of Color. When the coronavirus pandemic surfaced in late 2019, it magnified the existing faults in the disability rights strategy. For the Black disabled community, the coronavirus pandemic reflected a historical resonance, displaying the modern confiscation of the Black disabled bodymind by society and government built from past foundations of slavery, ableism, racism, and eugenics.
At the time of this article, the pandemic maintained its path of harm in Black communities. Black Americans represent 12.4% of the population and suffered 13.7% of known COVID-19 deaths. Said another way, within less than one year of its emergence, COVID-19 has killed 1 in every 645 of Black Americans, which necessarily includes Black disabled people. Further, research documents that “Black, Indigenous and Latino Americans,” when using an indirect age adjustment, have a COVID-19 death rate averaging 2.7 times higher nationally compared to the white population.
There is consensus among disability advocates and scholars that the ability of the ADA to achieve greater inclusion, access, and equality for people with disabilities requires more. What this “more” is occupies much debate. Largely missing from disability scholarship is an examination of how the ADA is failing people with disabilities who live at the intersection of disability and a racialized identity and what strategies can be utilized to more effectively challenge the inequities in disability equality for multiply marginalized populations.
Scholars have long explored what “more” is needed to strengthen the force of the ADA and address the “deep-rooted structural obstacles to disability equality.” Samuel Bagenstos, generally emphasizing the failure of the ADA to root out structural inequalities in employment, has urged disability rights advocates to “move beyond” the “antidiscrimination/accommodation strategy” by embracing, for example, social welfare interventions that focus more on universality versus individual interventions, such as expanding the eligibility for public health insurance and the services covered under these programs.
Additional strategies proposed by disability rights scholars to address ADA limitations include “adopt[ing] a disability human rights paradigm.” This paradigm “combines the type of civil and political rights provided by antidiscrimination legislation ... with the full spectrum of social, cultural, and economic measures ... bestowed by many human rights treaties.” Other proposals include using “targeted constitutional strategies” to reframe the rights of people with disabilities; “challeng[ing] the roots of disability stigma ...” by eliminating the secrecy that shrouds the adjudicative procedures brought under the ADA; and “claim[ing] disability identity” as a means of “challenging stereotypes on a large scale and disrupting longstanding conceptions linking disability inextricably to limitation.”
The disability rights framework emphasizes individualism and self-sufficiency with the goal of assimilation through integration at its core. Historically, advocates of the ADA promoted this ideal, centering a “rights-focused, welfare opposing approach ... [that] disproportionately benefit[ed] a relatively advantaged class of people with disabilities.” This approach remains largely unchanged today as the ADA has less impact for disabled people who live at the intersection of multiply marginalized identities. Consequently, the single-issue focus on disability anchors the disability rights framework, further reflecting the need for a re-imagined approach to disability analysis and advocacy. As Michael Perlin and Heather Ellis Cucolo stated in their discussion on the marginalization of certain non-dominant communities in disability law, “we need to focus on why the struggle to overcome rights violations is often greater for persons who are not of the dominant race or gender, and why it is essential that this area of law must be studied in the context of prevailing social policies as they relate” to disability.
Is it possible to re-imagine a disability rights future that incorporates a racism/ableism consciousness? This article explores this possibility by arguing that a re-centering of the disability rights strategy is required to bridge a disconnect that has developed over time between the promises of the ADA and disabled Black, Indigenous, and other People of Color. This recalibration requires a shift to an informed consciousness that confronts the role of racism, ableism, and its intersections on disabled Black and other multiply marginalized disabled communities.
Disability Justice offers principles to guide disability rights into the future. Created and led by disabled people of color and queer and gender non-conforming disabled people of color, Disability Justice emerged in response to how the disability rights movement prioritized a single-issue civil rights framework at the expense of the lived experiences of disabled people who live “at intersecting junctures of oppression.” As a framework, Disability Justice centers the experiences of “disabled people of color, immigrants with disabilities, queers with disabilities, trans and gender non-conforming people with disabilities, people with disabilities who are houseless, people with disabilities who are incarcerated, people with disabilities who have had their ancestral lands stolen, amongst others.” In this centering, Disability Justice seeks to identify and resist how ableism intersects with capitalism and white supremacy to designate bodies and minds as deviant, unvaluable, or unproductive.
Disability Justice is grounded in principles that include recognizing the complexity and nuance of intersectional identity in challenging systems of oppression, pushing back against capitalist notions of productivity as a means to value one's worth, engaging in cross-disability movement building and cross-movement solidarity, and envisioning a collective liberation where all bodyminds are valued. These principles share some ideologies of critical theorists who challenge the limitations of rights-based and legal strategies. Activists and scholars have long-critiqued the shortcomings of the rights-based model in civil right strategies as failing to root out inequities “facing intersectionally targeted communities” and sometimes exacerbating the systems of “violence and control” that they intend to address. Disability Justice, however, further unpacks this critique by centering within its framework the role of ableism, viewing it as “[t]he root of disability oppression.”
This article proposes a critical racism/ableism consciousness framework that is guided by principles of Disability Justice. This framework also relies heavily on visionaries of Critical Race Theory and Disability Critical Theory. In exploring concepts such as intersectionality, a term first conceptualized by Kimberlé Crenshaw, a racism/ableism consciousness framework seeks to serve as a guide for further exploration by disability rights advocates and scholars in re-imagining a disability rights future beyond the single-issue narrative of disability.
This framework centers racism/ableism as the co-constituted systems that are the root of the disability-based harm, dislodging the white, single-issue disability focus as the normative frame. Through this centering, a critical racism/ableism consciousness framework demands an examination of disability through the prism of its intersections--race, class, sexual orientation, gender, immigrant status, and others--and further recognizes with equal weight the physical, cognitive, and psychological impact of disability on one's bodymind.
The legacy of slavery, racism/ableism, and eugenics are central driving forces in sustaining oppressive systems that disproportionately impact disabled Black, Indigenous, and other People of Color. In not recognizing the history and harm of white supremacy that Yancy describes and how it pervades disability and many types of oppression, any disability strategy will fall short.
Part I of this article explores the history of enslavement and the racialization of eugenics as the building blocks of ableism and the social construction of disability. This section then discusses a disability rights movement that followed a course largely centered on white maleness as the normative identity in disability strategy and concludes with an overview of Disability Critical Theory. Part II discusses the emergence of Disability Justice.
Part III asserts that the “race-neutral,” single-issue focus on disability is failing as a tool to achieve equal opportunities and access for people who live at the intersection of disability, race, and other marginalized identities. To illustrate, I center the analysis on Blackness as it intersects with education, deaf/disabled incarcerated people, access to medical care, police violence, and the expansion of carceral spaces for people with psychiatric disabilities. I focus more specifically on these areas as they relate to individuals with intellectual, developmental, cognitive, and psychiatric disabilities.
In conclusion, Part IV applies three principles of Disability Justice-- intersectionality, centering the voices of the disabled communities most impacted, and cross-movement solidarity--to illustrate a broader disability rights framework that centers its work more intentionally and structurally beyond a single disability-rights focus. In acknowledging that “disabled Black and brown creators face a specific 'invisibilization’ and erasure of [their] political and cultural work,” this article is not an argument to co-opt the principles of Disability Justice or water down the politics of its movement. Rather, these words are a call for disability rights advocates and scholars to engage more intentionally in centering racism/ableism and principles of Disability Justice in the collective efforts to challenge and dismantle discriminatory systems with the goal of transformative justice.
[. . .]
The weight of history continues to shape laws and policies that legitimize the decisions by public and private actors to torture, isolate, withhold life sustaining treatment, and forcibly institutionalize deaf/disabled, Black, Indigenous, and other People of Color. Isolating disability rights advocacy from broader systemic issues perpetuates the notion that access to disability rights is executed on equal grounds. Yet, the revolving door of inequities that disproportionately impact the Black and brown disabled community reflects a different reality.
A racism/ableism consciousness framework challenges how institutional culture and practices of white supremacy, racism/ableism, and heteropatriarchy influence disability rights advocacy. More specifically, it involves critiquing how these institutional cultures and practices shape the priorities, discourse, decisions, and strategies in disability rights work. This internalized work requires a humility in acknowledging and course correcting the role that white supremacy has long played in developing disability rights strategies and strained coalition building with disabled people of color. It further requires a recognition of and a strategy around how to navigate conversations concerning the stigma and fear experienced by some disabled communities of color to self-identify and disclose their disability.
The racial and economic disparities exposed by the coronavirus pandemic together with the murder of George Floyd and other Black people killed by police re-ignited a national discourse on the enduring legacy of white supremacy in the United States. As dialogue and mobilization efforts continue, it is equally critical to confront the role of white supremacy in how disability rights advocacy and discourse has evolved to create limitations in how the ADA and other disability rights laws are applied, and who most benefits. By engaging both critically and creatively in how to foster a disability rights future that foregrounds principles of Disability Justice, advocates can foster a future beyond the limits of the ADA.
Associate Professor Law and Co-Director of the Disability and Aging Justice Clinic at CUNY School of Law; J.D., George Washington University Law School B.S., Boston University.
