Whoever said pandemics were equalizers doesn’t know a thing about disability legal history. It does not take much of a pretext to rollback disability rights. This is because disability rights laws, despite enumerated principles of equal opportunity and civil rights, have always been viewed as “nice to do” and not “must do.” Simply put, society continues to misunderstand disability—what it means, who the category includes or excludes, its relationship to impairment, its valence and construction as an identity. Moral and religious-tinged frames have trumped the perception of disability as a protected class akin to race, gender, or national origin. This view explains Congress’s intent that the Americans with Disabilities Act (ADA) play not only a remedial role for disability discrimination ex post, but also a proactive, ex ante role in upending problematic social norms that treat disability and incapacity as synonymous. Similarly, the perception of disability as a different kind of civil right helps explain the Supreme Court’s interpretive missteps in the infancy and adolescence of the ADA and Congress’s direct reproach and redirection of the Court in the ADA Amendments Act eighteen years later.
The Frailty of Disability Rights
- Jasmine E. Harris
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- Professor of Law, University of California—Davis; J.D., Yale Law School; A.B., Dartmouth College. This Essay has benefitted from thoughtful comments and conversations with Afra Afsharipour and Doron Dorfman. Thanks to Tessa Opalach and Emily Roberts for their invaluable research assistance and to the editors of the University of Pennsylvania Law Review for their dedicated editorial assistance.