Works in Progress Group #12 Disability Rights

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Session Type: Works-in-Progress

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Centering Disability Justice

The coronavirus pandemic surfaced existing faults in the disability rights strategy, exposing a porousness in access to the promises of the Americans with Disabilities Act for disabled Black, Indigenous, and other People of Color. Professor Chin's article examines that the future effectiveness of disability rights advocacy demands a re-centering that incorporates principles of Disability Justice. This recalibration requires a shift from a single-issue focus on disability to an informed consciousness that confronts the role of racism/ableism on Black, Indigenous, and other People of Color in accessing disability rights protections. This article argues that the absence of a critical racism/ableism analysis is subsuming the goals of disability equality under the ADA. In particular, the single-issue focus on disability is erasing the complex experiences that multiply marginalized disabled people experience, creating a revolving door of inequities that are compounded in disabled communities of color. This argument focuses on Blackness and disability in four areas: education, access to medical care, police violence, and the unjustified segregation of people with disabilities in carceral spaces. It further narrows its analysis by centering the discussion on Blackness and intellectual, developmental, cognitive, and psychiatric disabilities. This endeavor concludes by applying three principles of the Disability Justice framework—intersectionality, centering the leadership and voices of the disabled communities most impacted, and cross-movement solidarity—to suggest a broader disability rights framework that centers its work more intentionally and structurally beyond a single disability-rights focus. Through this re-centering, this article seeks to map a way forward for the future of disability rights.


The Real and Expressive Harms Caused by the ADA’s Direct Threat Defense: A DisCrit Examination of the Defense and Whether We Can Live Safely Without It

Recognizing that pervasive discrimination against disabled people continued to deny them equality of opportunity, economic self-sufficiency, and full participation, Congress enacted the Americans with Disabilities Act of 1990. This “emancipation proclamation” for disabled people would eliminate intentional exclusion and also address the discriminatory effects of social and structural barriers, including those resulting from “antiquated attitudes,” unfounded fears, and deep-seated stereotypes. At the same time, the ADA included a “direct threat defense”, which allows employers, public entities, and public accommodations to exclude individuals with disabilities who present a direct threat to others or create an unsafe environment. At first glance, the defense seems uncontroversial, especially since it requires a showing that the individual presents a significant risk that cannot be eliminated by reasonable accommodation. Yet, the defense reflects and perpetuates the notion that individuals with disabilities are dangerous and more dangerous than those without disabilities. In view of the long and sordid history of mistreatment of disabled individuals and viewing the language and application of the law through a DisCrit lens, Professor Salzman's article questions whether a law designed to uncover and irradicate irrational fears and stereotypes can continue to incorporate language reinforcing the stereotype of the dangerous disabled person. Using case examples, the article will explore how the presence of this defense contributes to the continuing exclusion of people with disabilities and the perpetuation of stereotypes that harm individuals in a range of contexts. Finally, the article will propose a less stigmatizing alternative.