Blackness as Disability?

73 Pages Posted: 23 Jan 2018 Last revised: 3 Feb 2018

Kimani Paul-Emile

Fordham University School of Law

Date Written: January 22, 2018

Abstract

Recent incidents of police violence against unarmed African-Americans and the lead-filled water of Flint, Michigan are only the most recent reminders of what it means to live as a black person today in the United States. Being black increases the odds of living in poverty, attending failing schools, experiencing housing discrimination, being denied a job interview, being stopped by the police, receiving inferior medical care, living in substandard conditions and polluted environments, being unemployed, receiving longer prison sentences, and, ultimately, having a lower life expectancy. Although we do not think of being black in the United States as disabling, this Article argues that it may be appropriate to do so.

As provocative as it might seem, understanding the black racial designation as disabling can bring new clarity to the reality that racial categories in the United States were created explicitly to serve as a caste system to benefit some and disable others. It also opens up an entirely new approach to how the law should attend to race discrimination and structural inequality: disability law.

This Article uses the doctrinal framework and normative commitments of disability law, notably the Americans with Disabilities Act, as an analytical lens for examining race and as a practical means for addressing discrimination and structural inequality. This model fundamentally reframes race jurisprudence in ways that other antidiscrimination laws — such as the Civil Rights Act of 1964 and equal protection jurisprudence — do not allow. Traditional race jurisprudence focuses on malicious intent and promotes the impractical norm of color- blindness. Disability law, in contrast, does not require a showing of intent and is disability conscious. Indeed, disability law more constructively speaks in the language of reasonable modification and balancing remedial justice against social and economic cost. This legal framework allows for serious engagement with the reality of structural inequality, opening new possibilities for social reform foreclosed by current race jurisprudence, and offers a meaningful legal path to advancing racial equality.

Suggested Citation

Paul-Emile, Kimani, Blackness as Disability? (January 22, 2018). Georgetown Law Journal, Vol. 106, No. 293, 2018; Fordham Law Legal Studies Research Paper No. 3107289. Available at SSRN: https://ssrn.com/abstract=3107289

Kimani Paul-Emile (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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