Disability, Equality and Identity
Laura L. Rovner
University of Denver Sturm College of Law
December 9, 2008
Alabama Law Review, Vol. 55, No. 1043, 2004
This article explores the theory that the success of the disability community in infusing the socio-political model of disability into federal law has been significantly eroded by recent judicial decisions interpreting the ADA that are grounded in the medical model of disability. Over the past several decades, the disability movement has worked to shift society's understanding of disability away from the medical model and toward a socio-political/civil rights model. In the article, I discuss the idea that although the ADA seemed to represent significant legislative progress in the law's recognition of the socio-political model of disability, cases interpreting the ADA, particularly its reasonable accommodation mandate, actually may be moving the disability rights movement backward in terms of the courts' impact on societal constructions of people with disabilities.
In the article, I examine the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) to explore this issue and its implications for the disability rights movement. Of particular concern is the Court's holding that the Equal Protection Clause requires only 'formal equality' and its position that the ADA's reasonable accommodation mandate constitutes a form of 'special treatment' that is not consistent with the Constitution's guarantee of equal protection. I assert that by adopting this position, the Court not only has attacked one constitutional underpinning of the statute, but also the foundation of the disability rights movement: that is, the construction of disability itself. In this way, Garrett and similar decisions are fundamentally troubling to the disability rights movement because disability activists have looked to the law-and specifically the concept of 'rights'-to express the vision and goals of the movement, and to assist in the political self-definition of the movement. To the extent the disability rights movement, like other identity-based social movements, continues to look to the law for guidance about its identity, Garrett and similar decisions represent a significant threat, not only to the rights and remedies they may take away from disabled people, but also because of their construction of disability itself.
Number of Pages in PDF File: 58
Date posted: December 11, 2008