an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It is time for a new frame for our thinking about antidiscrimination law and theory. Many have observed that the trend in the Court's reasoning about race discrimination especially -- under the Constitution as well as key statutes -- is counterproductive. This reasoning leaves little room for constructive race consciousness, for flexible and creative remedial efforts, because it leaves us with little other than an individual bad actor model and a goal of colorblindness. Stepping outside the Court's current doctrine, I propose a new model for understanding discrimination, a model drawn from disability law and theory. Disability, I want to suggest, can provide us with useful ways to think about discrimination, to conceive of identity, and to design remedies.
First, disability offers a model of discrimination that requires no bad actors to produce exclusionary outcomes. In this way, disability helps us to move away from the individual bad-actor model. The paradigm case of the wheelchair user presents this scenario starkly. A building has stairs; at least in a world before the ADA, no building designer needs to have thought about whether stairs would exclude people in wheelchairs in order for people in wheelchairs to be excluded. No bad actor, yet utter exclusion. Disability thus demonstrates that facially neutral policies can be disabling, even if no animus underlies them.
Second, disability theory presents a model of identity that shows us how environment can create disadvantage, but does not insist on a wholly constructivist notion of difference. The social model of disability is a counterpoint to the so-called medical model. Whereas the medical model emphasizes impairment as the biologically determined, highly individualized basis of disability, the social model locates disability in the interaction between individual impairment and the social environment. Or as the writer and activist Simi Linton, who uses a wheelchair, puts it to her students, "If I want to go to vote or use the library, and these places are inaccessible, do I need a doctor or a lawyer?" The social model does not insist that biological difference is nonexistent -- a claim implausible to many. But the social model does redirect our attention from the medical notion of impairment to the social nature of impairment's relation to the outer world, and thus renders that difference relatively meaningless by shifting our focus to the ways society generates that meaning. The social model therefore offers a path out of the back-and-forth struggle to claim nature or nurture, and rests our gaze on the significant operation of meaning making.
Third, disability law offers a remedial model that can attend to individual variation and change the social environment through a process of negotiation and innovation. The ADA's accommodation requirement offers, at least in principle, a resounding answer to the assimilationist worry in antidiscrimination law -- that is, to the question, Who has to change, the individual or the environment? Accommodation requires an employer to make adjustments to enable an individual to get the job or do the job. And that requirement is not just a right to sue after the discrimination has occurred; rather, it is accompanied by incentives for employers to engage in an "interactive process" with employees to design effective accommodations to avoid or address problems ex ante. Moreover, while this interactive process and the underlying right expressly target individuals, the process of accommodation may have broader benefits to the workplace, either automatically or indirectly. Thus, accommodation presents both a metaphor and a practical process for changing the structural environment, while at the same time linking that change to individuals' particular needs.
I look forward to more discussion at the conference of this very general sketch of what I think disability law and theory offer our antidiscrimination thinking. Before closing, though, I should note that there are multiple downsides to the disability model. Foremost among them -- and perhaps already in readers' minds -- is the widespread assumption that disability means inferiority. To say that race discrimination, for example, can be better understood by adopting a disability frame may seem to accept stereotypes of racial hierarchy and inferiority. (Worries about the stigma associated with disability -- and especially the assumption of inferiority -- are well known to transgender advocates who have debated the merits of using the disability model.) But such a concern adopts (common) assumptions about disability that a disability studies perspective challenges by showing how the disadvantage created by difference has social roots. Nonetheless, there are admittedly dangers to even broaching the disability frame. As we look for bold new ways to think about discrimination, however, we need to be willing to confront those dangers. Disability law and theory have much to offer as we work to undo the limiting trend in equal protection.