Legal Historians on "The Disability Frame"

Last February, we noted that several legal historians would be participating in a University of Pennsylvania Law Review symposium on "The Disability Frame." The published volume is now available online at the Law Review's website. Contributions of interest for readers of this blog include:

Nate Holdren (Drake University), Capitalism Disables: The Case of Workers' Compensation Laws. Abstract:

This article presents an account of disability as social and thus variable, connected to an account of capitalism as an inherently disabling type of society, such that different capitalist societies may disable in different ways, but all of them will disable. The article then takes the early history of workers’ compensation laws in the United States as a case study for the theoretical account of disability and capitalism, arguing that those laws created new incentives for discrimination against disabled people and thus re-organized the process of disabling. The article concludes with brief speculation about what these points imply for the prospects of achieving justice for disabled people through law.

Karen Tani (University of Pennsylvania), Disability Benefits as Poverty Law: Revisiting the "Disabled State". Abstract:

This essay, a contribution to "The Disability Frame" symposium, uses the
history of a famous and influential disability benefits case to revisit
political scientist Deborah Stone’s argument in THE DISABLED STATE
(1984). Observing that “[m]edical certification” of disability had
“become one of the major paths to public aid in the modern welfare
state,” Stone wondered whether policymakers were asking the “concept of
disability” to do too much and whether they were sufficiently alert to
the concept’s tendency to expand over time.

Filed in 1983 and
decided by the Supreme Court in 1990, Sullivan v. Zebley is an example
of those expansionary pressures and their significant results. When the
Social Security Administration stopped making Supplemental Security
Income payments to 5-year-old Brian Zebley, despite his continuing and
severe disabilities, lawyers at the legal aid organization Community
Legal Services filed a class action. Operating from a foundational
belief that the welfare state should be more robust, Zebley's lawyers
contended that not only had the Social Security Administration erred in
Zebley’s case, but also that the Agency’s overall eligibility
determination process for child disability benefit claimants was too
restrictive. The plaintiffs’ ultimate victory before the Supreme Court,
and the surprising allies it amassed along the way, illustrate how
readily many actors and institutions connected disability to
deservingness and embraced disability as a distributional device in the
late twentieth century. The post-Zebley backlash against child
claimants, however, illustrates how closely the public continued to
associate disability with deviance and fraud, especially when they
observed take-up among Black citizens. Negative perceptions contributed
to the program’s reform in 1996. Congress preserved the new path to
eligibility that Zebley created, but also narrowed it. Decisional power,
meanwhile, remained in the hands of medical gatekeepers.

This
essay casts the Zebley story as one of triumph and tragedy. It was a
triumph for poverty lawyers and their clients, who, under hostile
circumstances, pressed for a more generous and life-affirming social
welfare system. They saw that the boundaries of disability were
malleable and they pushed on them. But it remains a tragedy that the
best route to subsistence for so many children has further entangled
disability with medicalization, suspicion, and surveillance. 

Also of interest: Britney Wilson (New York Law School), Making Me Ill: Environmental Racism and Justice as Disability. Although not a historian, Wilson drew on historical research to explore the intersection of disability, race, civil rights, and
environmental justice: Abstract:

Civil rights legal scholars and practitioners have lamented the
constraints of the largely intent-based legal framework required to
challenge racial discrimination and injustice. As a result, they have
sought alternative methods that seemingly require less overt proof of
discrimination and are more equipped to address structural harm. One of
these proposed solutions involves the use of the Americans with
Disabilities Act (ADA)—due to its affirmative mandate to address
discrimination by reasonable modification or accommodation—and the
framing of issues of racial injustice in terms of disability or the
deprivation of medical rights. Environmental justice, an area in which
issues of both race and disability are salient and affect one another,
is one such context in which advocates have tried to use the ADA to
challenge broader structural harm. This Article analyzes cases in which
practitioners have used the ADA to challenge issues of environmental
injustice to examine the purported utility of the ADA, and disability
and medicalization framing, more generally, in addressing structural
racism and injustice. Specifically, I discuss the attempted use of the
ADA to stop the construction of a petrochemical plant in “Cancer Alley,”
Louisiana and to challenge mold on behalf of public housing residents
in New York City.

The use of the ADA to challenge environmental
injustice has clear legal and social justice narrative benefits that
explain its appeal, including the required inclusion of people with
disabilities in environmental justice campaigns that disproportionately
impact them, but from which they are often left out—except for as
examples of the negative consequences of harm. However, the promise of
these legal theories has not been adequately tested to proffer the ADA
as a true alternative to race-based civil rights laws, and there are
many suggestions that it is not. Furthermore, the use of disability as
both narrative harm and legal strategy in environmental justice
campaigns raises important considerations for racism and ableism as
interrelated institutional harms. Therefore, any attempt to expand the
disability frame in this direction requires an understanding of racism
that does not exclude or otherwise undervalue ableism and vice versa.
Otherwise, we risk perpetuating the same problems.

The symposium event featured many other scholars. Rabia Belt's remarks may be of particular interest to readers of this blog. A YouTube recording of her panel is available here.

-- Karen Tani