disability law

Panel Recap: Individual Rights

The panelists on the Individual Rights panel pushed the boundaries of the panel’s theme in two ways.  First, they did not engage in a definitional debate as to what individual rights are protected by the Constitution.  They instead focused either on creating a framework that would allow other actors to engage in the interpretation debate or on theorizing new tools for realizing constitutional rights.  Second, the panelists suggested that a progressive vision of individual rights in 2020 may not be focused on the individual at all – the best way to protect individual rights may be through a reimagination of the social infrastructure. 
As Professor Rick Garnett noted, the quintessential image associated with individual rights, that of the lone dissenter, is still important; it remains the recipient of these rights and one of its protectors.  However, the de-contextualized individual was largely absent from a conversation about individual rights that was dominated by institutions, social organizations and movements, identity groups, and our social environment.
This is not to suggest that the panelists’ presentations were similar; as you'll see, although the panelists shared some common ground, each tackled divergent aspects of this broad category of constitutional rights:

Video courtesy of Yale Law School.

Professor Elizabeth Emens started the discussion off by positing that anti-discrimination law is trapped in an “individual bad actor” model which fails to address institutional structures that lead to disparate impact, and that a progressive vision of individual rights must correct this failure.  She suggested that disability law may be a helpful analytical tool for reimagining “the anti-discrimination project.”  By locating the idea of disability between the individual’s impairment and the social environment, disability law is able to “focus on structural change without losing sight of the individuals,” a focus that Professor Emens is optimistic might benefit anti-discrimination law.
Professor Garnett and Professor Paul Horwitz both argued institutions are not only mediums through which people may express their rights, but also are [mechanisms?] capable of protecting these rights.  Professor Garnett argued that the right to religious freedom is best protected and served by ensuring that non-state institutions, including churches and other religious organizations, flourish.  Professor Horwitz posited that the First Amendment doctrine would be best served by learning from the best practices these institutions have developed over time, and by reconsidering the relationship between courts, institutions, and the rights themselves.  In the long run, they argue, protecting these institutions may be the best way to protect the rights of the individual—even acknowledging that these institutions may not always support those individual rights. 
Professor Alice Ristoph concluded the panelist presentation portion of the session.  She discussed the possibility of identifying an anti-violence norm in the Constitution.  While anti-discrimination would only prevent the use of [more?] force against one group, Professor Ristoph expressed some optimism that the Constitution might contain instead a norm that curtails the government’s use of violence in pursuit of goals such as criminal justice or national security.  She also expressed concern that the constitution and citizens themselves may be used to rationalize government violence.
The panelists considered several intriguing questions posed by audience members during the later half of the panel. Professor Emens and Professor Ristoph debated about how much work anti-discrimination might do in bringing about an anti-violence norm.  In response, Paul Kahn, who moderated the panel, suggested that their debate illuminated two distinct views of state action as an actor in the protection of state rights: either rights constrain the state, or they guide the state toward positive obligations of accommodation. 
Judith Resnik challenged the premise that federal courts might assist in identifying and protecting an anti-violence norm, noting that they often have tolerated vast amounts of violence.  She also asked how a social movement might engender actors who are less frightened and more willing to support this norm.  Although her points were directed toward Professor Ristoph, others queried whether different fears—of stigmatization and vulnerability—might prevent people from linking disability law with anti-discrimination law. 
Reva Siegel expressed concern that the accommodation model of disability law may be too general a mode of equality that lacks the “granular, group-specific answers” that are needed because discrimination affects distinct communities and groups differently.
Professor Horwitz acknowledged that he and the other panelists have theories that, if implemented, would substantially change the toolkit currently in use for protecting individual rights.  He considered whether it is worth changing the toolkit, given the transition costs of doing so; and whether these additions and changes illuminate the appropriate tools to use.    
The panelists and audience members raised a number of important issues; here, I offer a few additional questions that hopefully build upon these contributions.  First, I noted above that the panelists tread common ground in their treatment of the individual in relation to other actors.  Taking first the theories of Professor Garnett and Professor Horwitz – the strength and historical significance of institutions both support their theories, but also beg the question as to how much stronger non-state actors should be made; is there a tipping point beyond which they will no longer be protectors of individual rights and instead become limits to these rights? Even if social organizations shore up individual rights in the long run, is this enough to warrant the strengthening of institutions that may not be supportive of some rights of the individual? 
This question might be asked more broadly of all the panelists: in a discussion of contextualized individual rights, what is the right balance between the lone dissenter, the individual as a social being, non-state institutions, and the government?  Finally, what happens to any of the theses presented when we consider a fact that emerged from the discussion: that individuals, social organizations, and even the state may be either a useful tool for protecting or a roadblock to the realization of constitutional protected rights, in addition to being the intended recipient of these rights?

Disability's Force

Crosspost from Balkinization

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.


Elizabeth Emens is Professor of Law at Columbia Law School. She will be appearing on Saturday's "Individual Rights" Panel with Rich Garnett (Notre Dame
Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), Paul Horwitz (University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

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