Kanter - Introduction To Disability Legal Studies

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THE LAW: WHAT'S DISABILITY STUDIES
GOT TO DO WITH IT
OR
AN INTRODUCTION TO DISABILITY LEGAL
STUDIES
Arlene S. Kanter*
Imagining disability as ordinary, as the typical rather than the

atypical human experience, can promote practices of equality and
inclusion that begin to fulfill the promise of a democratic order.
Rosemarie Garland Thomson (2001)'
I. INTRODUCTION
In the introduction to No Pity: People with DisabilitiesForge

New Civil Rights Movement, journalist and author, Joseph P. Shapiro
claims that "there is a disability angle to every story he develops."2
What is proposed in this Article is that there is a "disability angle" to
* Laura J. and L. Douglas Meredith Professor of Law, Syracuse University

College of Law; Founder and Director, Disability Law and Policy Program; Co-
Director, Syracuse University Center on Human Policy, Law, and Disability
Studies. An early version of this article was present at the Second City
International Conference on Disability Studies in Education and Law at Syracuse
University on May 1-3, 2009. The author completed this article during 2009-10
when she was a Fulbright Scholar at Tel Aviv University (2009-10) and a
recipient of the 2010-11 Distinguished Switzer Fellowship from the United States
Department of Education's National Institute on Disability and Rehabilitation
Research. The author wishes to thank the Syracuse University College of Law for
summer research funds that supported research for this article. The author can
be contacted at kantera@law.syr.edu.
1. Seeing the Disabled: Visual Rhetorics of Disability in Popular
Photography, in New Disability History: American Perspectives 372 (Paul
Longmore & Lauri Umansky, eds., 2001).
2. Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil
Rights Movement 10 (1993).
404 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:403
every aspect of the law. The new field of Disability Studies has begun
to challenge the legal academy to examine such "disability angles."
As such, Disability Studies has much to offer the law as well as legal
education, just as a critical examination of the law has much to offer
the field of Disability Studies.
It is now well accepted that Disability Studies has emerged
as a new and exciting field of academic inquiry. Disability Studies
applies social, cultural, historical, legal, philosophical, and
humanities perspectives to understanding the place of disability in
society. It explores disability as a social and cultural construct and as
a phenomenon reflecting and constituting identity formation by
incorporating the "real-lived" experiences of people with disabilities.
Furthermore, Disability Studies adopts a cross-disability perspective
and explores differences and commonalties in the experiences of the
diverse groups of people society has defined as "the other" based on
their disability.
Many academic institutions in the United States now offer
courses or programs in Disability Studies, 3 and most professional
3. In 1993, the Society for Disability Studies developed the following

working guidelines for any program that describes itself as 'Disability Studies':
(1) It should be interdisciplinary/multidisciplinary. Disability sits at the center of
many overlapping disciplines in the humanities, sciences, and social sciences.
Programs in Disability Studies should encourage a curriculum that allows
students, activists, teachers, artists, practitioners, and researchers to engage the
subject matter from various disciplinary perspectives; (2) It should challenge the
view of disability as an individual deficit or defect that can be remedied solely
through medical intervention or rehabilitation by "experts" and other service
providers. Rather, a program in disability studies should explore models and
theories that examine social, political, cultural, and economic factors that define
disability and help determine personal and collective responses to difference. At
the same time, Disability Studies should work to de-stigmatize disease, illness,
and impairment, including those that cannot be measured or explained by
biological science. Finally, while acknowledging that medical research and
intervention can be useful, Disability Studies should interrogate the connections
between medical practice and stigmatizing disability. (3) It should study national
and international perspectives, policies, literature, culture, and history with an
aim of placing current ideas of disability within their broadest possible context.
Since attitudes toward disability have not been the same across times and places,
much can be gained by learning from these other experiences. (4) It should
actively encourage participation by disabled students and faculty, and should
ensure physical and intellectual access; and (5) It should make it a priority to
have leadership positions held by disabled people; at the same time it is
important to create an environment where contributions from anyone who shares
the above goals are welcome. Soc'y for Disability Studies, Guidelines
2011] DISABILITY LEGAL STUDIES 405
academic organizations now have sections devoted to the study of

disability within their respective disciplines. 4 But why should we, as
law faculty and legal scholars, care about including disability-related
topics or better yet, a Disability Studies perspective within our law
school curriculum? Why would we want to consider introducing a
Disability Studies perspective into a course on evidence, property,
family law, or even tax? What can the emerging field of Disability
Studies teach us and our students? Ultimately, then, how will
inclusion of a Disability Studies perspective within the legal academy
help our students to become better lawyers, and perhaps more
importantly, help to promote fairness and justice in society?
My response to these questions is relatively straightforward,
as set forth in this article. Disability Studies infuses into the legal
academy a perspective of those who are routinely made invisible and
marginalized, just as feminist legal studies,5 and critical race theory6
for Disabilities Studies Programs, http://www.disstudies.org/disability-studies

program-guidelines/guide linesdisability-studies programs.
4. See, e.g., the American Association of Law School's Disability Law
Section (which the author co-founded), the American Philosophical Association,
the American Association of Religion, the American Historical Association, and
the Modern Language Association, to name a few.
5. Feminist legal studies is a critical examination of law that focuses on the
extent to which law and legal practice have contributed to the subjugation of
women. For important examples of feminist legal studies see generally Feminist
Legal Theory: An Anti-Essentialist Reader, (Nancy E. Dowd & Michelle S. Jacobs
eds., 2003); Mary Joe Frug, Postmodern Legal Feminism 128 (1992); Nancy Levit
& Robert R. M. Verchick, Feminist Legal Theory: A Primer Critical America
(2006); Kathryn Abrams, The Constitution of Women, 48 Ala. L. Rev. 861 (1997);
Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft),
105 Harv. L. Rev. 1045 (1992); Kenneth L. Karst, Woman's Constitution, 1984
Duke L.J. 447; and Anita Silvers, Reprising Women's Disability: Feminist
Identity Strategy and DisabilityRights, 13 Berkeley Women's L.J. 81 (1998).
6. The earliest writings on Critical Race Theory may be traced to the works
of Professor of Law, Derrick Bell, who rejects the belief that the legal reforms of
the Civil Rights movement positively affected both the construction and
application of laws due to the inherent racism in the law and legal institutions.
See Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence
Dilemna, 93 Harv. L. Rev. 518, 522-23 (1980) (examining, in part, the limited
gains of the Brown decision as a result of the unwillingness of white people to
cede institutional power); Derrick A. Bell, Who's Afraid of Critical Race Theory?
1995 U. Ill. L. Rev. 893, 898-908 (describing Critical Race Theory and the debates
around it). See also generally Mary Brewer, Staging Whiteness (2005); Critical
Race Theory: The Cutting Edge (Richard Delgado ed., 1995); Critical Race
Theory: The Key Writings that Formed the Movement (Kimberld Crenshaw, et.
al. eds., 1995); Jean Stefancic, Critical Race Theory: An Introduction (2001);
Milner S. Ball, The Legal Academy and Minority Scholars, 103 Harv. L. Rev. 1855
did before it for other groups. Disability Studies help us to see

disability as part of the human experience and to understand how
the law, and society, in general, views difference as a deviation from
an "unstated norm."' When the issue involves race, for example,
whites are treated, but never acknowledged, as the norm, while
blacks are considered the deviation. Similarly, when the issue is
gender, men are treated, but never acknowledged, as the norm, while
women are considered the deviation. When the issue is disability, the
able bodied, seeing, hearing, mentally healthy person with a certain
score on an intelligence test is treated, but never acknowledged, as
the norm, while people who communicate through sign language, use
wheelchairs, or speak, think, or hear differently, are considered the
deviation. Disability Studies helps us to understand implications of
these preferences.
Disability Studies, therefore, offers the law and legal
education the opportunity to critically examine the role of "normalcy"
within the law and within society, generally. It challenges us to
examine our unstated assumptions and requires us to recognize,
appreciate, and most importantly, value differences among us. Since
law itself is in the business of deciding how to recognize, legitimate,
and allocate differences-different rights, responsibilities, resources,
and even justice within society-Disability Studies offers an
appropriate lens through which we can view the legal profession, and
the meaning of difference within the legal system, and society.
Conversely, the field of law may also inform the field of Disability
Studies by providing a context in which to examine the meaning of
differences within our legal and extrajudicial systems. It also may
help us to see more clearly issues of power, privilege, and
participation.
I begin this Article with an examination of what Disability
Studies is and what it is not. I then discuss Disability Studies as an
academic field, including the field's models and language. Next is an
exploration of the emerging area of Disability Legal Studies and the
relationship between disability and law, and a discussion of how
(1990); Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated
Bibliography, 79 Va. L. Rev., no. 2, 1993 at 461-516; Winkfield F. Twyman, Jr.,
The Lightness of Critical Race Theory, Intellectual Conservative (Dec. 6, 2005),
http://www.intellectualconservative.com/article4783.html (all giving background
on Critical Race Theory).
7. See Martha Minow, Making all the Difference: Inclusion, Exclusion and
the American Law 51(1990).
Disability Legal Studies (not just a course in disability law here and
there) has the potential to transform traditional legal education, the
law, and perhaps society, too.
II. TOWARDS A DEFINITION OF DISABILITY STUDIES
A. Towards a Definition of What Disability Studies Is

Disability Studies is not one discipline, nor does it profess to
subscribe to one particular theory, perspective, or approach to the
study and teaching of disability. However, as a new academic field,
Disability Studies does offer an innovative way to approach and view
the production and perpetuation of disability as a social identity.
First, Disability Studies is multi-disciplinary. As such, it
borrows from the scholarship of many disciplines as well as occupies
its own place between and among different disciplines. Disability
Studies, therefore, not only adds to existing disciplines, but also
creates new scholarship by posing questions about the place of
disability in society that traditionally other disciplines have ignored.
Second, Disability Studies generally refers to the
examination of disability as a social, cultural, and political
phenomenon, which counters the notion of disability as an inherent,
immutable trait located in the person. Disability Studies sees
disability as the result of socio-cultural dynamics that occur in
interactions between society and people with disabilities. It rejects
the view that disability is solely a medical problem or a personal
tragedy. Instead, Disability Studies places the responsibility for
reexamining and repositioning the place of disability within society
not on the individual, but on society itself. Disability Studies,
therefore, challenges the role of normalcy in society.' Simi Linton,
8. For other discussions about what Disability Studies is and what it is not,
see generally Steven Taylor, Why Teach Disability Studies? An Essay for
Teachers, Ctr. on Human Policy (2004), http://www.disabilitystudiesfor
teachers.org/files/WHYTEACH_DISABILITYSTUDIES.doc; Gerben DeJong,
Toward a Research and Training Capacity in Disability Policy, 14 Disability
Studies Quarterly 152 (1994); Harlan Hahn, DisabilityPolicy and the Problem of
Discrimination, 28 Am. Behav. Sci. 293 (1985); Simi Litvak, Disability Studies
us. DisabilityPolicy Studies 14 Disability Stud. Q. no. 2, Summer 1994, at 23; Sue
Watson, Building a DisabilityPolicy Studies Discipline within the Academic Field
of Public Policy, 14 Disability Stud. Q. no. 2, Summer 1994, at 33; Irving Zola,
Shaping an Interdisciplinary Field of Disability Studies: The Perspective of
Sociology, 14 Disability Stud. Q. no. 2, Summer 1994, at 17; Diane N. Bryen &
one of the early Disability Studies scholars, describes the field as

follows:
Disability Studies reframes the study of disability by
focusing on it as a social phenomenon, social
construct, metaphor, and culture utilizing a minority
group model. It examines ideas related to disability in
all forms of cultural representations throughout
history, and examines the policies and practices of all
societies to understand the social, rather than the
physical or psychological, determinants of the
experience of disability. Disability Studies both
emanates from and supports the Disability Rights
Movement, which advocates for civil rights and self-
determination. This focus shifts the emphasis from a
prevention/treatment/remediation paradigm, to a
social/cultural/political paradigm. This shift does not
signify a denial of the presence of impairments, nor a
rejection of the utility of intervention and treatment.
Instead, Disability Studies has been developed to
disentangle impairments from the myth, ideology,
and stigma that influence social interaction and social
policy. The scholarship challenges the idea that the
economic and social statuses and the assigned roles of
people with disabilities are inevitable outcomes of
their condition.9
A third characteristic of Disability Studies is that it sees
"people with disabilities not as patients or charitable 'cases' but
rather as human beings who exist as an important part of the social
fabric."' 0 Within Disability Studies, the term disabled is defined
Sieglinde A. Shapiro, Disability Studies: What it is and Why it is Needed?,

Temp. Univ. Faculty Herald 25(4), available at http://disabilities.temple.edu/
programs/ds/facultyherald.shtml.
9. Litvak, supra note 8, at 24 (citing a definition Linton communicated to
her). Linton has further identified the field's subject matter as follows: "Disability
studies takes for its subject matter not simply the variations that exist in human
behavior, appearance, functioning, sensory acuity, and cognitive processing but,
more crucially, the meaning we make of those variations . . .. It is an
interdisciplinary field based on a sociopolitical analysis of disability and informed
both by the knowledge base and methodologies used in the traditional liberal
arts, and by conceptualizations and approaches developed in areas of the new
scholarship." Simi Linton, Claiming Disability: Knowledge and Identity 2 (1998).
10. Catherine J. Kudlick, DisabilityHistory: Why We Need Another "Other",
108 Am. Hist. Rev. 763, 775 (2003) (discussing the work of Rachael Adams on the
history of "ideas toward the public display of human anomalies" in Sideshow
USA: Freaks and the American Cultural Imagination (2001)).
subjectively; as such, disability is "a political or a moral judgment,

based not on anything about the individual in question so much as
the viewer's own perception and attitudes about the way society
should function."" By defining disability as a social category rather
than an individual characteristic, disability is no longer the exclusive
domain of medicine, rehabilitation, special education, physical or
occupational therapy, and other professions oriented toward the cure,
prevention, or treatment of a disease, injury, or physical or mental
impairment.
A fourth characteristic of Disability Studies is that it stands
in sharp contrast to the study of disability which focuses on the
person with a disability as one with medical, physiological,
anatomical, psychological and functional pathologies that originate in
the body or mind of the person.' 2 By contrast, Disability Studies
embodies values based on viewing the person with a disability not as
a victim of pathology, but as one who is limited more by social
attitudes and environmental barriers than any inherent "defect" or
"deficiency" within the person that must be remedied."
Finally, by asserting that disability is a social construct
derived from a history of stigmatization and exclusion, Disability
Studies recognizes that knowledge of disability is to be found among
people with disabilities themselves. 14 Disability Studies thus uses the
perspectives and experiences of people with disabilities as
foundations for research and training.
B. Towards a Definition of What Disability Studies Is Not

As discussed above, Disability Studies differs from traditional
disability-related fields, such as occupational therapy, physical
therapy, rehabilitation counseling, or social work, that generally
train people to work with people with disabilities as patients or
clients. Accordingly, Disability Studies is different from the study of
disability in several significant ways.
11. Mary Johnson, Make Them Go Away: Clint Eastwood, Christopher

Reeves, and the Case Against Disability Rights 46 (2003).
12. Simi Linton, Disability Studies/Not Disability Studies, 13 Disability &
Soc'y 525, 529-31 (1998).
13. Litvak, supra note 8, at 24.
14. See Lennard Davis, Bending Over Backwards: Disability,
Dismodernism, and Other Difficult Positions 139 (2002).
First, in Disability Studies, the paradigm for viewing

disability differs from that used in traditional disability-related
fields. Disability Studies considers disability as a natural part of the
human condition, not a defect or impairment of the person that must
be eliminated, treated, or cured. It therefore shifts the emphasis
away from a "prevention/treatment/remediation paradigm, to
a social/culturallpolitical paradigm."'" Disability Studies rejects the
perception of disability as a functional impairment that limits a
person's activities, and instead encourages the re-imagination of the
place of disability within society.16 The Disability Studies paradigm
aims to "fix" systems to be accessible to and usable by people with
disabilities in contrast to the traditional paradigm that focuses on
"fixing" the individual so that he or she can better fit into existing
systems.
A second way in which Disability Studies differs from
traditional paradigms for viewing disability is that Disability Studies
seeks to portray people with disabilities as individuals with dignity
who are capable of contributing to society, albeit in their own,
"different" ways. Disability Studies research is not limited, therefore,
to empirical research or statistics about people with disabilities.
Empirical studies that seek to count and categorize people with
disabilities for the purpose of benefits eligibility, census counts, and
other research related to service delivery, are not necessarily
considered Disability Studies research. If such empirical research
challenges the meaning of disability, the identity of the invididual
charged with defining disability, and the ways in which society
creates and perpetuates the category of disability, then such research
may fall within the realm of Disability Studies. However, if such
research focuses only on the person with a disability as an object of
15. Litvak, supra note 8, at 24 (citing a definition of Disability Studies

provided by Simi Linton).
16. It is important to note here that the term "impairment" is not a neutral
or fixed category. Impairments too can be socially constructed, although generally
they are seen as relying on the medical model for a diagnosis of impairment.
Lenny Davis observes,
Particularly with illnesses that did not exist in the past, the
plethora of syndromes and conditions that have sprouted in the
hearts and minds of physicians and patients-conditions like
attention deficit disorder, fugue states, pseudoneurotic
schizophrenia, or borderline psychosis-we have to question
the clear line drawn between the socially constructed
"disability" and the preexistent and somatic "impairment."
Davis, supra note 14, at 23.
study, without also seeking to bring forth the voice or viewpoint of

the person with a disability, then such research will be criticized by
Disability Studies scholars and disability rights activists as not
Disability Studies research. While such empirical research about
disability has a place in the academy, such research may be criticized
for using disability as a category for comparison that focuses on
people with disabilities in their particularity. When their
particularity becomes the subject of the research, it is not
empowering to people with disabilities." Of course, related problems
are created when research on the general population excludes
disability altogether because people with disabilities are considered
too particular to be relevant to such studies." In either case, "the
deficit paradigms remain, and the focus is on the individual as
deviant subject, rather than on the social structure that labels
difference as deviance and pathology."' 9
In the more traditional studies of disability, the researchers
retain the position as experts, with authority, while people with
disabilities are merely the object of the research. The field of
Disability Studies challenges this paradigm by viewing people with
disabilities themselves as experts, in addition to the professionals
who may know about various medical, legal, sociological, and
educational conditions that have historically defined disabilities. It is
17. Linton, supra note 9, at 134-35.

18. See Paul K. Longmore & Lauri Umansky, Introduction in The New
Disability History 1, 7 (Paul K. Longmore & Lauri Umansky eds., 2001) (noting
that "[lesearch and teaching about disability still appear primarily in . . . [the
fields of rehabilitation, special education, medicine and related professions] and
continue to be based on medical models." Further, "when the liberal-arts fields
broach the topic of disability, Simi Linton notes, 'the deficit paradigms remain,
and the focus is on the individual as deviant subject'). Just because a certain
type of disability research is called Disability Studies research does not
automatically guarantee that it is consistent with the goals of Disability Studies.
For example, as my colleague, Beth Ferri, and I have discussed, simply because
research is qualitative does not mean that it is any more empowering and less
objectifying of people with disabilities than empirical research. In fact,
qualitative research, which involves interviews, personal stories, and data, can be
seen as treating people with disabilities as objects even more than quantitative
research. Qualitative research may feel even more intrusive and more like a
violation of the dignity of a person with a disability than, for example, anonymous
test scores or other kinds of empirical data that are not personally revealing.
19. Id. at 1, 7 (quoting Simi Linton, The Disability Studies Project:
Broadening the Parameters of Diversity, in End Results and Starting Points:
Expanding the Field of Disability Studies 323-25 (Elaine Makas & Lynn
Schlesigner eds., 1996)).
for this reason that emancipatory research has found a comfortable

home within Disability Studies. 20
A third way in which Disability Studies differs from more
traditional views of disability is that it challenges the view of
disability as tragic or pitiable. People who work with blind, deaf,
autistic, developmentally disabled, and/or physically disabled
individuals often see their clients' or patients' impairment as a great
personal tragedy. Yet, people with disabilities do not necessarily see
their own lives that way.
For example, recent "quality of life" studies have revealed
that physicians generally have more negative views of the quality of
life that people with disabilities are able to enjoy than do people with
disabilities themselves. One study shows that 86% of persons with
spinal cord injuries said their own quality of life was, and would be in
the future, average or better than average when compared to the
population in general. Of the rehabilitation physicians, nurses, and
technicians who treated them, however, only 17% held this view. 2 In
the same study, only 18% of emergency care providers imagined they
would be glad to be alive if they were paralyzed, whereas 92% of the
20. Michael Oliver coined the phrase "emancipatory disability research" in

1992. Mike Oliver, Changing the Social Relations of Research Production, 7
Disability, Handicap, & Soc'y 101, 107 (1992) (discussing contemporary "calls to
develop another paradigm for social research-what has variously been called
critical enquiry, praxis or emancipatory research"). Emancipatory disability
research emerged as a critique of mainstream disability research, which had
generally ignored disabled people's experiences and "the complexity of the process
of disablement with reference to environmental and social forces." Colin Barnes,
"Emancipatory" Disability Research: Project or Process? Public Lecture in
Glasgow, Scot. (Oct. 24, 2001), available at www.leeds.ac.uk/disability-studies/
.../glasgow%201ecture.pdf. See also generally Michael Oliver, Emancipatory
Research: Realistic goal or impossible dream? in Colin Barnes & Geof Mercer,
Doing Disability Research 15 (1997); Special Issue: Researching Disability, 7
Disability Handicap & Soc'y 99 (1992). However, emancipatory research has also
been the subject of criticism by disability scholars. See, e.g., Ardha Danieli &
Carol Woodhams, Emancipatory Research Methodology and Disability: A
Critique,8 Int'l J. Soc. Res. Methodology 281, 285-92 (2005) (advancing a number
of critiques of emancipatory research, including its inability to dismantle the
positivism and power structures of other research methods).
21. Kenneth A. Gerhart, et al., Quality of Life Following Spinal Cord Injury:
Knowledge and Attitudes of Emergency Care Providers, 23 Annals of Emergency
Med. 807, 810 (1994).
2011) DISABILITY LEGAL STUDIES 413
people who are quadriplegics reported that they were glad to be

alive.22
In another study, individuals who received services in a
spinal cord injury rehabilitation unit were found to be similar to the
general population in their level of depression. However, the unit
staff (consisting of physicians, nurses, occupational therapists,
physical therapists, social workers, psychologists, therapeutic
recreation specialists, and spinal cord injury education specialists)
consistently misjudged the patients' level of depression and
considered their patients' depression to be much worse than the
general population norm.23
Obviously, not everyone in the helping professions hold such
negative views about people with disabilities and their quality of life.
However, to the extent that such discordant views about the quality
of life of people with disabilities exists between some members of the
helping professions and those whom they serve, the effects on people
with disabilities can be devastating, if not fatal. In the United States,
for example, there exists the view that the life of a person with a
disability is so meaningless that assisting them to die is acceptable.
This dismal forecast of the quality of life of a person with a disability
is so poor has, in fact, resulted in calls for legalized euthanasia. Such
"right to die" laws have now been enacted in several states.24
22. Id. at 807. See also Dick Sobsey, Why we shouldn't blame the murders of
disabled kids on lousy services, Not Dead Yet (March 2001),
http://www.notdeadyet.org/docs/articles/sobsey0301.html (discussing the need for
parents of disabled children to understand disability as not wholly negative in
order to adequately care for those children).
23. Laura A. Cushman & Marcel P. Dijkers, Depressed Mood in Spinal Cord
Injured Patients: Staff Perceptionsand PatientRealities, 71 Archives of Physical
Med. & Rehabilitation 191, 191 (1990). Another study found that "medical
personnel viewed the use of a mechanical ventilator as a burden and a way to
correct a deficiency in a person with a disability. The users, however, viewed the
ventilators as positive and as assistive technology devices which simply helped
them in their daily lives." This phenomenon "is another example of service
providers using a deficit/medical model of disability, which leads to a stigma at
best and a denial of needed services (the ventilator) at worst. The denial would be
based on the incorrect assumption that the users really did not want such a
burden." David Pfeiffer, et al., Attitudes Toward Disability in the Helping
Professions, 23 Disability Stud. Q. 132 (2003), available at http://www.dsq-
sds.org/article/view/420/587 (internal citations omitted).
24. Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800-995 (2004);
Washington Death with Dignity Act, Wash. Rev. Code 70.245.010 (2008).
Those who see living with a disability as no life at all include

Dr. Jack Kevorkian, a leader of the "Death with Dignity" movement
in the United States. During a court proceeding in which he was
charged with murder, Dr. Kevorkian stated that the "voluntary self-
elimination of mortally diseased or crippled lives taken collectively
,, 21
can only enhance preservation of public health and welfare.
Similarly, with respect to infants with disabilities, Dr. Peter Singer,
a professor of bioethics at Princeton University, believes that the
quality of life of some disabled infants may be so poor that it is
morally right to kill them at birth.26
People with disabilities, however, have challenged such
views. For example, in a 2003 cover story in the New York Times
Magazine, entitled "Unspeakable Conversations," Harriet McBryde
Johnson, a disability rights lawyer and activist in her forties who
recently died, responded to Singer. She wrote, "[Singer] thinks it
would have been better, all things considered, to have given my
parents the option of killing the baby I once was, and to let other
parents kill similar babies as they come along, and thereby avoid the
suffering that comes with lives like mine." But, she continued, "the
presence or absence of disability doesn't predict quality of life."27
Disability Studies stands clearly on the side of affirming the
value of life with a disability. It embodies values based on viewing
the person with a disability not as a victim or "charity case," but
instead as a participant in the world, as a survivor, and as one who is
25. Verbatim, State of Michigan for the County of Oakland, 7 Issues in L. &
Med. 107, 109 (quoting Statement of Defendant at 11, People v. Kevorkian, No.
90-390363-AZ (Mich. Cir. Ct. Feb. 5, 1991)).
26. Peter Singer, Practical Ethics 184 (2d ed., 1995); see also Helga Kuhse
& Peter Singer, Should the Baby Live? The Problem of Handicapped Infants.
Oxford Univ. Press 74-97 (1985) (discussing the philosophical questions around
killing infants with disabilities versus letting them die). The author concluded
that "at least in the medical cases we have been considering, killing an infant is
not worse than letting that infant die." Id. at 96.
27. Harriet McBryde Johnson, Unspeakable Conversations, N.Y. Times
Magazine, Feb. 16, 2003, available at http://www.nytimes.com/2003/02/16/
magazine/16DISABLED.html?pagewanted=all. See also Harriet McBryde
Johnson, Too Late to Die Young: Nearly True Tales from A Life (2005) (Johnson's
memoir). In 2008, Johnson died in her sleep at the age of 50. In her memoir, she
said it was the Jerry Lewis muscular dystrophy telethon that sent her the
message, for the first time, that her neuromusclular disease would eventually kill
her. Johnson drew national attention for her opposition to the "pity-based tactics"
of the annual Lewis muscular dystrophy telethon, which she protested, together
with thousands around the country, for the past 20 years. Id. at 47-75.
limited by the social, legal, environmental, and attitudinal barriers

created by the society in which he or she lives. People with
impairments generally do not see themselves or their lives as tragic
and not worth living. For example, Liat Ben Moshe, a Ph.D. student
in Sociology and Disability Studies at Syracuse University, has
written that her real-lived experience, including using a wheelchair,
can be enriching and empowering. She explains that once one of her
students told her that "she felt confused and did not know what to do;
that she felt paralyzed." Liat responded (to herself), "[F]unny; I am
paralyzed, but I do know what to do. I stop listening to the student's
complaint and feel offended by the conversation., 28
A fourth way in which Disability Studies differs from studies
of disability is that the background of the scholars and their
audiences may be different. Historically, disability research has
involved primarily doctors, nurses, rehabilitation counselors, physical
therapists, occupational therapists, psychologists, psychiatrists,
teachers, social workers and other members of what is considered the
"helping" or "applied professions." Disability Studies emerged from
disciplines that previously had not specifically addressed the issue of
disability as a social construct, such as architects, journalists, film
makers, philosophers, lawyers, policy makers, artists,
choreographers, writers, poets, historians, anthropologists,
sociologists as well as some from the helping professions, too.
Moreover, the audience of Disability Studies scholarship includes not
only members of the helping professions, but also now people with
disabilities themselves as well as policy makers and social reformers
seeking to challenge society's hierarchies that relate to the overall
exclusion and marginalization of many groups, including people with
disabilities. Accordingly, the scope and breadth of Disability Studies
research and its audience is far more expansive and interdisciplinary
than traditional disability scholarship per se.
Finally, the outcomes of Disabilities Studies research are
different from traditional research about disability. Studies about
disability generally focus on the number of people with disabilities
participating in certain programs or activities or an understanding of
issues related to diagnosis, prevention, rehabilitation, treatment, and
cure of a given impairment. By contrast, the outcome of Disability
Studies research involves additional issues such as an understanding
28. Liat Ben-Moshe, "Lame Idea:"DisablingLanguage in the Classroom, in

Building Pedagogical Curbcuts: Incorporating Disability into the University
Curriculum 107, 111 (Liat Ben-Moshe et al. eds., 2005).
of history, politics, economics, culture, and civil and human rights.

The overarching purpose of Disability Studies research is to offer
alternative ways in which society may view disability generally, as
well as people who are disabled, as a group, and their experience of
living with a disability, in their particularity. 29
In short, Disability Studies recasts disability as a set of
relations that determines a person's place in society, and reframes
the study of disability by focusing on it as a social phenomenon, social
construct, metaphor, and culture. 30 The fundamental issue then
becomes "not one of [the] individual's inabilities or limitations, but
rather, a hostile and unadaptive society."31
C. Disability Studies as an Academic Field

Disability Studies, as an academic field, is relatively new.32 In
the United States, scholars in the field of sociology were among the
first to embrace Disability Studies. In 1998, James I. Charlton wrote
Nothing About Us Without Us: Disability Oppression and
Empowerment, in which he gave a name to the movement, within the
academy and beyond. In the UK, Michael Oliver's The Politics of
Disablement:A Sociological Approach in 1990 developed the idea of
the social model of disability, and it remains one of the core texts of
any Disability Studies program today.34
29. Irving Kenneth Zola, Introduction, 14 Disability Stud. Q. no. 2, Summer

1994, at 15, 16 (discussing Litvak, supra note 8).
30. As Simi Linton explains, "Disability Studies is an interdisciplinary field
based on a socio-political analysis of disability and informed both by the
knowledge base and methodologies used in traditional liberal arts, and by
conceptualizations and approaches developed in areas of the new scholarship.
Linton, supra note 9, at 2.
31. See John Swain, et. al., Controversial Issues in a Disabling Society ii
(2003); see also Linda Ware, Writing, Identity and the Other: Dare We Do
Disability Studies?, 52 J. of Tchr. Educ. 107, 107 (2001) (emphasizing the
importance, in schools, of how "the context responds to disability").
32. See Peter Monaghan, PioneeringField of Disability Studies Challenges
EstablishedApproaches and Attitudes, Chron. of Higher Educ., Jan. 28, 1998, at
Al5; Harlan Hahn, The Potential Impact of Disability Studies on Political
Science (as Well as Vice Versa), 21 Pol'y Stud. J. 740, 740 (1993) (examining "the
implications of future directions in research on disability and political science").
33. James Charlton, Nothing About Us Without Us: Disability Oppression
and Empowerment (1998).
34. Michael Oliver, The Politics of Disablement: A Sociological Approach (St.
Martin's Press 1990).
In addition, the work of many scholars who have investigated

aspects of the body and society are now re-read within the field of
Disability Studies. Such writers include Thomas Szasz on mental
illness;" Leslie Fiedler16 and Bob Bogdan on freaks; Mikhal Bakhtin
on the grotesque; 8 Jacques Derrida on blindness; 39 Judith Butler on
anorexia; 40 Sander Gilman on disease; 41 David Rothman on
Asylums; 42 and Foucault, 4 3 who has written on the postmodern
subject as a "ruse to disguise the hegemony of normalcy.""
Erving Goffman and other social scientists who examine
stigma also have found a new home in Disability Studies.45 According
to Goffman, stigma reflects the values of the dominant group that
determines which human differences are desired and which
are feared, devalued, or undesired. 46 To the extent that the
35. Thomas Szasz, The Myth of Mental Illness: Foundations of a Theory of

Personal Conduct (rev. ed. 1974); Psychiatric Justice (2d ed. 1988).
36. Leslie Fiedler, Freaks: Myths and Images of the Secret Self (1978);
Tyranny of the Normal: Essays on Bioethics, Theology & Myth (1996).
37. Robert Bogdan, Freak Show: Presenting Human Oddities for
Amusement and Profit (1988).
38. Michael M. Bakhtin, Rabelais and His World (H616ne Iswolsky trans.,
Indiana University Press 1993) (1941).
39. Jacques Derrida, Memoirs of the Blind: The Self-Portrait and Other
Ruins (Pascale-Anne Brault & Michael Naas trans., 1993).
40. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity
(1990); The Psychic Life of Power: Theories in Subjection (1997).
41. Sander Gilman, Seeing the Insane (1982).
42. David Rothman, The Discovery of the Asylum, Social Order and
Disorder in the New Republic (1971).
43. Michael Foucault, Birth of the Clinic: An Archaeology of Medical
Perception (1973); Madness and Civilization: A History of Insanity in the Age of
Reason, (R. Howard trans., Tavistock 1965) (1961).
44. Davis, supra note 14, at 30.
45. See Lerita M. Coleman, Stigma: A Enigma Demystified, in Disability
Studies Reader 141, 141-42 (Lennard J. Davis, ed., 2d ed. 2006) (discussing
Goffman's work on stigma in the context of Disability Studies). See also Erving
Goffman, Asylums: Essays on the Condition of the Social Situation of Mental
Patients and Other Inmates (1961) and Stigma: Notes on the Management of
Spoiled Identity (1963).
46. Goffman, Stigma, supra note 45, at 3 (a stigmatized person is "reduced
in our minds from a whole and usual person to a tainted, discounted one .... The
term stigma [refers] to an attribute that is deeply discrediting, but it should be
seen that a language of relationships, not attributes, is really needed."). An
example of this phenomena is a town in Martha's Vineyard, (off the coast of
Massachusetts) in which nearly all the residents were Deaf and which
exemplifies the relevance of social context to stigma. Early settlers in the town of
Chilmark on Martha's Vineyard carried a gene for deafness, and over years of
stigmatization that Goffman describes is also a consequence of social

comparisons that can change depending on the social context, his
writings are of particular interest to Disability Studies scholars
today.47
Even those who work on issues of identity politics have begun
to embrace Disability Studies, as well as see it as a way to discuss
identity beyond identity politics. In the study of identity, the
establishment of identity is seen as the first step toward resistance to
oppression. Accordingly, groups based on race and gender demanded
identity, visibility, and identification. Blackness and queerness
became positive identities in the face of negative and oppressive
regimes. But to some, a second stage of this process is now underway
in the United States, focusing less on group identity and more on how
to find (and value) diversity within the group. 48 Disability Studies
may provide leadership in this process. 49 To move beyond the first
stage of identity politics does not mean the disappearance of
differences, however. In Disability Studies, as in other fields, moving
beyond identity politics may mean affording recognition and
acceptance of disability as an identity; not only as a fixed category,
but also as a category that is malleable and that may expand,
especially as the population ages. 0
In short, as a new academic field, Disability Studies is open
to all disciplines and invites them to examine difference as part of the
marriage, generation after generation was born with hearing loss. At one point,
there were so many deaf people that the residents developed their own sign
language, known as Martha's Vineyard Sign Language (MVSL) that eventually
merged with mainland signs to form American Sign Language. In this town, no
stigma was attached to Deafness; indeed, it was the norm. See generally, Nora
Ellen Groce, Everyone Here Spoke Sign Language: Hereditary Deafness on
Martha's Vineyard (1985) (discussing the effects of the prominence of Deafness in
the town).
47. One work used in this way is Goffman's Asylums: Essays on the
Condition of the Social Situation of Mental Patients and Other Inmates, supra
note 45. This book is also used by Disability Studies scholars who challenge the
need for institutionalization as a legitimate place for services delivery to people
with disabilities.
48. See Davis, supra note 14, at 10-11.
49. See Lennard J. Davis, The End of Identity Politics and the Beginning of
Dismodernism, in Disability Studies Reader, supra note 45, at 231, 233; Marta
Russell, Beyond Ramps: Disability at the End of the Social Contract 231-32
(1998); Tobin Siebers, Disability Studies and the Future of Identity Politics, in
Identity Politics Reconsidered 10, 17 (Linda Alcoff & Satya P. Mohanty eds.,
2006).
50. See supra text accompanying notes 155-160.
larger human experience. Even within Disability Studies, there is

little agreement about the models and language of disability, as
explained below.
1. The Models of Disability

In addition to the theoretical challenges posed by Disability
Studies, several models of disability have emerged as part of the
development of Disability Studies."' Some scholars see each of these
models as part of the same overall model or view of disability. To
these scholars, differentiating between different models of disability
is less important than the critical viewpoint they do or do not
espouse. Other Disability Studies scholars value some models and
dismiss others as limiting and unresponsive to the real-lived
experiences of people with disabilities. Despite such disagreements
about the boundaries between and among these models of disability,
most Disabilities Studies scholars do agree that viewing disability
solely through the medical model is no longer acceptable.
a. Critique of the Medical/Individual Model

According to the medical model, a person with a disability is
seen as sick and in need of treatment, rehabilitation, a cure, or
charity. This model of disability locates the "problem" within the
individual rather than in society.5 2 It also places responsibility on the
51. Michael Oliver has warned against developing too many models of
disability. As he has written, "if we are not careful we will spend all of our time
considering what we mean by the medical model or the social model, or perhaps
the psychological or more recently, the administrative or charity models of
disability," and stresses that "[tihese semantic discussions will obscure the real
issues in disability which are about oppression, discrimination, inequality and
poverty." Michael Oliver, The Individual and Social Models of Disability, Paper
Presented at the Joint Workshop of the Living Options Group and the Research
Unit of the Royal College of Physicians 2 (July 23, 1990), available at
http://www.leeds.ac.uk/disability-studies/archiveuk/Oliver/in%20soc%20dis.pdf;
but see also Oliver, The Politics of Disablement, supra note 34, at 2-6 (discussing
the importance of certain definitions and critiquing the medical approach to
defining disability); Michael Oliver, Understanding Disability, From Theory to
Practice 30 (1996) (discussing the "individual" and "social" models of disability).
52. Although the medical model seeks to define disability by objective
medical criteria and diagnoses, at least one scholar has argued that it does not
objectively define disability and that such medical concepts are used in the
service of other interests that result in the constitution of disability as a social
category. See Deborah A. Stone, The Disabled State 107-117 (1984).
individual to change or to be "rehabilitated" or "cured" in order to fit

into society, since it sees the problem of the individual "stemming
from the functional limitations or psychological losses which are
assumed to arise from disability." As a result of viewing disability
through a medical lens, societies have erected large institutions to
protect and exclude people with disabilities from society. Today,
Disability Studies scholars and disability activists alike reject the
pathologization of certain behaviors that looks solely to the medical
establishment for solutions. As Paul Longmore and Lauri Umansky
have written, the medical model "personalizes disability, casting it as
deficit located within individuals that requires rehabilitation to
correct the physiological defect or to amend the social deficiency."54
Michael Oliver, a noted British Disability Studies scholar,
rejects the medical model in favor of the "Individual Model." For
Oliver, the medical model is just one part of a larger individual
model, which rejects the medicalization of disability, as well as the
"personal tragedy theory of disability," which suggests that disability
is some terrible chance event that occurs at random to unfortunate
individuals." He sees disability as a social state and not a medical
condition. "
The result of relying solely on a medical model of disability,
according to Oliver and others, is that society itself is let off the hook.
Society has no obligation to look at how it, itself, is structured; how it
creates barriers to inclusion; and how it shares in the responsibility
to eliminate the legal, attitudinal, and physical barriers that exclude
people with disabilities from our schools, workplaces and
neighborhoods. As a result, Disability Studies scholars have
generally dismissed the medical model of disability and replaced it
with the minority or social model of disability, both of which place
responsibility for reexamining and repositioning the place of
53. Oliver, supra note 51, at 3.

54. Longmore & Umansky, supra note 18, at 7 Simi Linton has observed
that on rare occasions, when the liberal arts fields broach the topic of disability,
"the deficit paradigms remain, and the focus is on the individual as deviant
subject, rather than on the social structures that label difference as deviance and
pathology." Linton, supra note 19, at 7.
55. As Oliver has written: "Why then is the medicalisation of disability
inappropriate? The simple answer . . . is . . . disability is a social state and not a
medical condition." Oliver, supra note 51, at 3. As a result, "medical intervention
in, and more importantly, control over disability is inappropriate. Doctors are
trained to diagnose, treat and cure illnesses, not to alleviate social conditions or
circumstances." Id.
disability not on the individual (and his or her doctor or treating

professional) but on society. Beyond that, great variation exists
regarding how Disability Studies scholars approach the study of
disability itself.16 Some Disability Studies scholars see disability as a
label and a social construct, while others view disability in terms of
group status, identity and culture, or a combination of all of these."
b. Minority Group Model of Disability

In contrast to the medical model of disability, stands the
minority group model of disability, which views people with
56. Another approach to disability may be attributed to Wolf Wolfensberger,

a social scientist, who taught at Syracuse University for many years, and is
largely responsible for the principle of "normalization." See Wolf Wolfensberger,
et. al., The Principle of Normalization in Human Services 28 (1972) His approach
still exists today and focuses on creating environments for people with learning
and intellectual disabilities that are as "culturally normative as possible." Id. at
27. What follows from this view (which does not necessarily call for an end to
institutionalization), is the idea that the human service "industries," including
teachers, social workers, and rehabilitation counselors, have created a large
industry the growth of which depends on a steady increase in the number of
people who are labeled as disabled, devalued, and dependent on the ever-
increasing human services industry consisting of health, social welfare and
services. Later in his career, Wolfensberger shifted his focus from normalization
to the view of disability as a social role valorization, which he "defined as the
'creation, support, and defence of valued social roles for people who risk
devaluation."' Colin Barnes, et. al., Exploring Disability: A Sociological
Introduction 74 (1999) (citing Wolfensberger's work) [hereinafter Exploring
Disability].
57. One author has observed,
Without a conception of disability as a social construct,
explanations of the results of modem "disability legislation" are
incomplete. What is not accounted for is the fact that laws
dealing with handicapped people reflect not only the political
problems posed by conflicting interest groups, but also the
views that biological deficiency and that handicapped people
deserve (perhaps desire) a place outside of the mainstream of
society. Furthermore useful legislative evaluations need to take
into account the processes by which people who deviate from
accepted physical norms are devaluated and segregated and, as
a result, disabled.
Claire H. Liachowitz, Disability as a Social Construct: Legislative Roots 1 (1988).
See also Minow, supra note 7, at 51 (noting that we generally adopt an unstated
point of reference when assessing disabled persons and that the point of reference
typically expresses perspectives of the majority or of power-holders within
society).
disabilities as an oppressed and "disadvantaged" minority group."

According to this model, which was originally identified by British
Disability Studies scholars, people with disabilities are victims of
indignities, discrimination, and exclusion from society in much the
same way as are other marginalized groups of people based on race,
gender, or sexual orientation. Accordingly, the Disability Rights
Movement, like the Civil Rights Movement and the Women's
Movement before it, focuses on issues of identity and power
relationships. The minority model supports this rights-based view of
disability. It "provides the collective context for political
identification; it involves processes which challenge views of disabled
people as incapable, powerless and passive; and it establishes
disabled people as the experts on disability and disabled people's
definitions as the most appropriate approaches to disability, rather
than the traditional domination of professionals." " However,
membership in the group of people with disabilities in society
necessarily imposes a non-majority, second class, "other" status on
people with disabilities, which shapes its members' life experiences. 60
It is undeniable that throughout their history, people with
disabilities, as a group, have been mistreated and stigmatized as "the
other." They have been denied the right to vote,' locked away in
58. See Harlan Hahn, Towards a Politics of Disability: Definitions

Disciplines and Policies, 22 Soc. Sci. J. 87, 94 (1985) (internal citations omitted)
(discussing the "socio-polical" definition of disability, and noting, "[t]he increased
emphasis on legal rights has led to a growing recognition that physically disabled
people comprise a minority group with many of the same problems as other
disadvantaged ethnic or racial segments of the population."). According to Jeremy
Schipper, scholars and activists "question the assumptions of the medical model
of disability and propose other models, such as the 'minority model.'" Jeremy
Schipper, Disability Studies and the Hebrew Bible: Figuring Mephibosheth in the
David Story 7 (2006). He explains that, under the minority model, people with
disabilities are viewed as disadvantaged "members of an oppressed group
subjugated by able-bodied ideologies encoded into larger social structures." Id.
59. Tom Shakespeare, Disability, Identity and Difference, in Exploring the
Divide 94, 102 (Colin Barnes & Geof Mercer eds., 1996), available at
http://www.leeds.ac.uk/disability-studies/archiveuk/Shakespeare/Chap6.pdf.
60. See Hahn, supra note 58, at 93-94 (noting society's historical failure to
recognize the human and civil rights of the disabled and to include disabled
persons in the political community).
61. See Michael Waterstone, Fundamental Rights and Voting, 56 Ala. L.
Rev. 793, 825-28 (2005) (noting practical obstacles to persons with physical
disabilities voting and the historical formal disenfranchisement of persons with
mental disabilities); Arlene S. Kanter & Rebecca Russo, The Right of People with
Disabilitiesto Exercise Their Right to Vote under The Help America Vote Act, 30
2011]1 DISABILITY LEGAL STUDIES 423
remote institutions where they have been excluded from society and
subjected to neglect and abuse. 62 History is replete with numerous
incidents of assault, rape, and even murder of people simply because
they were considered disabled.63
As a group, people with disabilities also are less wealthy, less
independent, less educated, and less likely to reach their full
potential than other disadvantaged groups. In the United States, for
example, 46% of adults with disabilities live in households with a
total income of less than $25,000.64 In the area of employment, more
Mental and Physical Disability L. Rep. 852, 852 (2006) ("[F]or many people with
disabilities, this right to vote has remained illusory.").
62. Indeed, the Americans with Disabilities Act was originally enacted in
1990 to address widespread discrimination against people with disabilities in
nearly every aspect of life, as well as their history of institutionalization. See 42
U.S.C. § 12101(a)(3) (2006) (finding persistent discrimination against individuals
with disabilities); see also Ruth Colker, The Law of Disability Discrimination 10-
11, (6th ed. 2007) (states had different means if "dealing" with individuals with
disabilities, including institutionalization); see also Burton Blatt & Fred Kaplan,
Christmas in Purgatory: Photographic Essay On Mental Retardation (1974)
(available from SU Center on Human Policy, Law, and Disability Studies,
Syracuse, NY) (photographically documenting conditions in mental institutions);
David J. Rothman & Sheila M. Rothman, The Willowbrook Wars (Harper & Row
1984) (discussing the court case involving over 5,000 people institutionalized in
the Willowbrook asylum). For a more recent discussion of institutionalization in
countries other than the U.S., see generally Deinstitutionalization and People
with Intellectual Disabilities: In and Out of Institutions (Rannveig Traustad6ttir
& Kelly Johnson eds., 2005), as well as reports published by Mental Disability
Rights International, an organization based in Washington, D.C. and dedicated to
promoting human rights and full inclusion of people with disabilities, worldwide,
particularly children and adults confined in institutions. Mental Disability
Rights Int'l, List of Reports, http://www.mdri.org/country-projects.html (last
visited November 7, 2010).
63. See Colin Barnes, A Legacy of Oppression: a History of Disability in
Western Culture in Disability Studies: Past, Present and Future 3-24 (L. Barton
& M. Oliver eds., 1997) (noting the systematic murder of disabled persons in Nazi
death camps), available at www.leeds.ac.uk/disability-studies/archiveuk/index;
Longmore & Umansky, supra, note 18, at 17 (noting the prevalence of abuse,
discrimination and oppression of disabled persons throughout history); see also
Jacqueline Vaughn Switzer, Disabled Rights: American Disability Policy and the
Fight for Equality 30-44 (2003) (highlighting the historic mistreatment of
disabled persons, including movements toward forced sterilization of disabled
persons); Sobsey, supra note 22 (discussing several murders as related to the
victims' disabilities).
64. Nat'l Org. on Disability, 2004 NOD/Harris Survey 22, available at
http://www.nod.org/assets/downloads/NOD-Harris-Results-2004.pdf; see also
Switzer, supra note 63, at 178 ("A 2000 survey found that 29% of disabled persons
than two-thirds of working age Americans with disabilities are not

working, 6 s even though 63% of those polled would prefer to be
working. 6 Only one in five working age adults with disabilities works
full-time, while 10% work part-time.6 7 By 2007, the situation had not
improved markedly. Only 21.2% of working-age persons with
disabilities were employed in full time/full year jobs, compared to
56.7% for non-disabled persons, and the median annual salaries for
disabled workers were 16% less than those for non-disabled
workers. People with the most stigmatized type of impairments,
such as cognitive disabilities or the label of mental illness, as well as
women, people of color, and gay, bisexual or transgendered people
with disabilities, fare even worse.
From an educational perspective, people with disabilities are
faring slightly better than they have in the past. However, in the
U.S. they remain far behind their non-disabled peers. A much larger
percentage of students with a range of disabilities have not
completed high school (25%) than those without disabilities (12%).69
had a household income of $15,000 or less, compared to 10% of those without

disabilities.").
65. Switzer, supra note 63, at 177.
66. Nat'l Org. on Disability, supra note 64, at 8.
67. Id. at 7.
68. W. Erickson & C. Lee, 2007 Disability Status Report: The United States,
Cornell University Rehabilitation Research & Training Ctr. on Disability
Demographics & Statistics, http://www.ilr.cornell.eduledildisabilitystatistics/
StatusReports/2007-HTMU2007-StatusReportUS.html?CFID=14653252&CFTO
KEN=97062245 (report prepared by Cornell University's Rehabilitation Research
and Training Center on Disability Demographics and Statistics in 2007 that used
the U.S. Census Bureau's American Community Survey (ACS) data). See also a
report by Shawn Fremstad of the Center for Economic and Policy Research that
concluded in September 2009 that "[d]isability is both a fundamental cause and
consequence of income poverty." He finds that approximately "50%of all working-
age adults who experience income poverty have a disability . . . nearly 66% of
adults experiencing long-term income poverty have a disability . . . [and]
individuals with disabilities experience income poverty more than those in any
other single minority, ethnic, or racial group." Fremstad also found that people
with disabilities are disadvantaged by the cost of their disability, which "rise[s] as
the severity of the disability" does. Am. Bar Ass'n Comm'n on Mental & Physical
Disability Law, Disability Statistics Report 3 (2010) (internal citations omitted).
69. Bryen & Shapiro, supra note 8, para. 4. The U.S. Department of
Education has found in its National Longitudinal Transition Study-2, which
documents the experiences of a national sample of students with disabilities over
several years as they moved from secondary school into adult roles, shows that
the incidence of students with disabilities completing high school rather than
dropping out increased by 17 percentage points between 1987 and 2003. During
Moreover, even since the enactment of the Americans with

Disabilities Act (ADA), in 1994, approximately 40% of Americans
with disabilities believe that things have not gotten much better for
them despite the passage of the ADA. 70
In order to change this situation and improve the lives of
people with disabilities within society, Disability Studies advocates
who subscribe to the minority view seek to bring forward the voices of
people with disabilities, in much the same way that scholars have
provided avenues for the voices of other oppressed and unrepresented
minorities. A tension exists, however, between the minority group
model and other models of disability.
Under the minority group model, the goal of disability
scholarship (and activism) is to provide people with disabilities the
same rights, privileges, and benefits enjoyed by other groups in
society. In the United States (and in other countries as well), we now
have laws that provide accommodations in the workplace, increased
benefits for people with disabilities who cannot work, and civil rights
laws guaranteeing equal access to services, education, public
accommodations, housing, employment, and other benefits and
privileges afforded to people who are not disabled." The tension
grows, however, as claims for equal treatment reinforce the notion of
the "deserving" person with a disability, which in turn perpetuates
the same period, their postsecondary education participation more than doubled
to 32%. In 2003, 70% of students with disabilities who had been out of school for
up to two years had paying jobs, compared to only 55% in 1987. U.S. Dep't of
Educ., Thirty Years of Progress in Educating Children with Disabilities Through
IDEA (2005), http://www2.ed.gov/policy/speced/leg/idea/history30.html. Despite
this progress, a Cornell University study reported that only 12.5% of working-age
persons with disabilities held a Bachelor's degree or higher, compared to 30.8% of
non-disabled persons. Erickson & Lee, supra note 68, at 42.
70. See, e.g., Russell, supra note 49, at 111. In this book, Russell argues that
the hope of the ADA for social and economic parity for people with disabilities has
not been realized because of the shift in American society generally, from a
"people-centered society" to a "corporate-centered society." See also Samuel R.
Bagenstos, Law and The Contradictions of the Disability Rights Movement 116,
117-19 (2009) (detailing statistical decreases in the percentage of people with
disabilities who participate in community activities and describing the decline in
the employment position of Americans with disabilities since the ADA).
71. For a discussion of the development of disability laws in different
countries, even before the adoption of the 2007 UN Convention on the Rights of
People with Disabilities, see Arlene S. Kanter, The Globalization of Disability
Rights Law, 30 Syracuse J. Int'l L. & Comm. 241, 248-52 (2003).
the location of disability within the person, rather than in society.7 2

Although the minority group model seeks to provide greater political
legitimacy to people with disabilities, as a group, it also runs the risk
of failing to challenge the "organizing structures and values of a
disabling society." 1 As such, according to Tom Shakespeare, a
leading Disability Studies scholar from England, the minority group
model may focus "on power politics and identity politics, while not
necessarily problematising disability itself."7 4
c. Social Model of Disability

Some scholars, such as Lennard Davis, consider the social
model and minority model interchangeable. Davis considers the
social model as the U.S. version of the British minority group model
that distinguishes between impairment, "the physical fact of lacking
an arm or leg .. . [and disability] as the social process that turns an
impairment into a negative by creating barriers to access."" Other
scholars see the social model as expanding upon the minority group
model.7 6 For these scholars, the social model sees disability as a social
72. See Shakespeare, supra note 59, at, 97, 108-110 (discussing the
"tensions between a focus on removing disabling barriers, and opposing the
oppression of disabled people as a minority group" and the danger of
essentializing disabled people's identity based on their membership in this
minority group).
73. Exploring Disability, supra note 56, at 72. See also Helen Liggett, Stars
Are Not Born: An Interpretative Approach to the Politics of Disability, 3
Disability, Handicap & Soc'y 263, 271-72 (1988) (discussing a number of critiques
of the minority model).
74. Shakespeare, supra note 59, at 97. James Charlton too sees the
collateral consequences of poverty and historically-imbalanced power structures
as creating people with disabilities as an oppressed minority. See Charlton,supra
note 33, at 21-36; see also Harlan Lane, The Mask of Benevolence 103-107 (1992)
(analogizing the lack of state recognition of American Sign Language to the
treatment of other linguistic minorities worldwide and the perpetuation of their
poverty and marginalization).
75. Davis, supra note 14, at 12. Irving Kenneth Zola, who defines
impairment as a loss of sight, hearing, mobility, etc., argues that an impairment
becomes a disability when the society creates environments with barriers; "[flor
example, a person using a wheelchair is only disabled if there are no ramps." Id.
at 41.
76. Colin Barnes, from the Centre for Disability Studies, University of
Leeds, England argues that the relationship between disability and rehabilitation
is best explained in terms of three distinct but related definitions of disability: the
orthodox "individualistic" medical definition, the more liberal "inter-relational"
account, and the "radical" socio/political interpretation commonly referred to as
20111 DISABILITY LEGAL STUDIES 427
construct and as part of the human experience. They offer "a strategy
of barrier removal, and education to remove prejudice, with the goal
of inclusion."" But unlike the minority group model, the social model
of disability focuses less on the relationship between the group of
people considered disabled and other groups and more on "disability
as a relationship between people with impairments and a
discriminatory society." 78 Nonetheless, the way that both the
minority group model and the social model view disability stands in
sharp contrast to the medical/individual model of disability.7 9
The social model places the responsibility squarely on society
(and not on the individual with a disability) to remove the physical
and attitudinal barriers that "disable" people with various
impairments, and prevent them from exercising their rights and fully
integrating into society. In other words, a person's impairment does
not diminish the right of that person to exert choice and control about
his or her life or to fully participate and contribute to communities
through full integration into the economic, political, social, cultural,
and educational mainstream of society. By relying on the social
model of disability, it is impossible to say that any person is "unable"
or "unqualified" to exercise rights or to participate fully in society.
the "social model of disability." He concludes with a brief focus on alternative

strategies generated by disabled people and their organizations. See Colin
Barnes, Rehabilitationfor Disabled People: A 'Sick' Joke?, 5 Scandinavian J. of
Disability Res. 7, 7-23 (2003), available at http://www.independentliving.org/
docs6/barnes2003a.html. Others argue that the social model is in fact an
umbrella term for many variations within Disability Studies. David Pfeiffer, for
instance, has identified nine different models of Disability Studies, including: the
social constructionist, the social, the impairment, the oppressed minority, the
independent living, the post-modern, the continuum, the human variation, and
the discrimination versions. David Pfeiffer, The Philosophical Foundations of
Disability Studies, 22 Disability Stud. Q. 3 (2002), available at http://www.dsq-
sds.org/article/viewFile/341/430. See also Colin Barnes, The Social Model of
Disability:A Sociological Phenomenon Ignored by Sociologists? in The Disability
Studies Reader - Social Science Perspectives 65, 66-78 (Tom Shakespeare ed.,
1998) (further elaborating on multiple models of disability); Patrick Fougeyrollas
& Line Beauregard, Disability: An Interactive Person-Environment Social
Creation, in Handbook of Disability Studies (Gary L. Albrecht et al. eds., 2001)
171, 177-78 (discussing generally the social model of disability and its broad
acceptance in the international movement).
77. Shakespeare, supra note 59, at 97.
78. Id.
79. The social model is an umbrella term for many variations within
Disability Studies. See Barnes, supra note 76, at 65; Fougeyrollas & Beauregard,
supra note 76, at 171.
Instead, it is affirmatively the obligation of society to change or adapt

its services, programs, facilities, systems, and other entities, so that
all people can exercise their rights to the best of their ability,
regardless of their particular impairment.so
But if disability itself is socially constructed, as the social
model proposes, what is the value of the real-lived experiences of
people with disabilities? That is a question commonly posed to
proponents of the social model of disability. The social model of
disability does not go so far as to negate the existence of disability or
to deny the existence of a person's impairment, pain, suffering, or
need for treatment and rehabilitation. Instead, the social model sees
the social meaning of the impairment as the source of the person's
difference and oppression rather than the person's impairment itself.
Harlan Hahn, a noted sociologist has labeled this phenomenon
"existential anxiety," which occurs when we obscure "our" own
deviations from the norm itself.'
80. The social model also emphasizes the difference between "disability" and
"impairment." A person may have an impairment (vision, hearing, physical,
mental), but, according to the social model, it is society that "disables" the person
by erecting barriers to the person's inclusion in society. But one could argue that,
like "disability," an impairment, too, is socially constructed. The definition of
disability, developed by the World Health Organization in 1980, distinguishes
between impairment, which is an anatomical loss, and disability, which is a
restriction resulting from the impairment. See World Health Org., International
Classification of Impairments, Disabilities, and Handicaps: A Manual of
Classification Relating to the Consequences of Disease 47, 143 (1980). This
classification was subsequently adopted by the United Nations. G.A. Res. 48/96,
9120, U.N. Doc. A/RES/48/96 (Dec. 20, 1993); see also Oliver, The Individual and
Social Models of Disability, supra note 51, at 2 (discussing the social model of
disability as one that "does not deny the problem of disability but locates it
squarely within society").
81. See Allan H. Macurdy, Commentary: Disability Ideology and the Law
School Curriculum, 4 B.U. Pub. Int. L. J. 443, 450 (1995) (citing Harlan Hahn,
The Politics of Physical Differences: Disability and Discrimination, 44 J. Soc.
Issues 39 (1988)). Macurdy describes Hahn as "a sociologist who has examined
societal perceptions of disability and has coined the term "existential anxiety" to
describe this phenomenon." Id. at 450 n.17. Macurdy expanded on this point
when he wrote,
To begin to understand how law supports the subordination of
individuals with disabilities, we need first to acknowledge the
social construction of disability. For example, a job applicant
who uses a wheelchair is not hired because of a false perception
that she is not able to do the job because of some cognitive or
communicative limitations; prospective parents with
disabilities are told that for them to have children would be
d. The Cultural Model of Disability

Related to the social model of disability is the cultural model
of disability. This model incorporates the theory of "subjection," based
on the writings of Foucault, who views disability as a category of
social policy. 82 This "subjection" approach "shifts the attention from
the person with the impairment to the statutory or policy processes
which construct him/her as officially disabled." It also offers an
alternative, post-modern framework, to promote a more fragmented,
decentered sense of self, which accepts multiple, conflicting
identities. The application of this theory to disability results in the
view that the definition of disability itself is "unstable and open to
contestation," rejecting externally imposed definitions of disability
and replacing them with a view of disability that "occurs alongside
unfair to those children; children with disabilities are excluded

from play groups, or are taught not to expect-through actions
as well as words-a future of careers, relationships and
purpose. Why are these examples "constructions?" First,
because each is an inaccurate representation of the realities of
specific disabilities or of what the lives of individuals with
disabilities are like. Further, these experiences create and are
created by a myth which expresses an ideal of "ableness" that is
hopelessly utopian. If we believe that most people can be
perfectly able-they look like us, they can do whatever we can,
and they can't do whatever we can't-we have come to see the
world as if it were that ideal. Once the world is defined in such
ideal terms, anyone who appears to deviate is defined as being
out of the world or, more precisely, is positioned below those
who appear to embody the ideal. Adherence to this ideal
perpetuates an unequal value allocation. That is, those in a
subordinate position are less important, less legitimate and
less valuable. This is hierarchy, constructed around a reified
norm of the ideally able-bodied and able-minded individual,
and it requires that we obscure "our" own deviations from the
norm itself. As in race and sex oppression, the hierarchies of
human value that subordinate individuals with disabilities are
the result of an ideology of "difference" or "otherness."
Id. See also Kimberle Williams Crenshaw, Race, Reform and Retrenchment:
Transformation and Legitimation in AntidiscriminationLaw, 101 Harv. L. Rev.
1331, 1373-74 (1988) (referring to the social construction of white supremacy in
America, Crenshaw writes that "[w]hites became associated with normatively
positive characteristics" while "[bilacks became associated with the subordinate,
even aberrational characteristics").
82. See generally Foucault, Madness and Civilization, supra note 43
(discussing the concept of madness as a social construct).
83. Shakespeare, supra note 59, at 98.
multiple other identities (such as sexuality, race, ethnicity,

socioeconomic status, etc.)."84 According to Deborah Stone, whose
writings rely heavily on Foucault, disability became a separate social
category that drew a distinction between the deserving and
undeserving poor, beginning with the enactment of the nation's
welfare laws. According to her, such categorization continues to
permeate social policy today."
Writers such as Susan Sontag,86 Simi Linton," Rosemarie
Garland-Thomson," Tom Shakespeare,8 9 David Mitchell and Sharon
Snyder, 90 Marion Corker,9 and others subscribe to the social model of
disability but have added to it by using disability as part of their
respective notions of cultural representation. Drawing on Foucault's
concept of discursive formations, the critique of disability as a
cultural category challenges popular representations of people with
84. Mark Sherry, Disability and Diversity: A Sociological Perspective 75

(2008).
85. See Stone, supra note 52, at 55 (examining the social construction of the
category of disability and its effect on the lives of people with disabilities by
providing a detailed account of the rise of disability as an administrative category
for welfare laws in England, Germany and the United States. See also Exploring
Disability, supra note 56, at 46 (citing Robert Scott, The Making of Blind Men 119
(1969) (discussing the socialization of people with disabilities to behave according
to social stereotypes of disabled persons)).
86. See generally Susan Sontag, Illness as Metaphor (1978); Susan Sontag,
Illness as Metaphor/AIDS and its Metaphors (1991) (discussing the metaphors
surrounding social understanding of various illness).
87. See generally Linton, supra note 9 (discussing disability studies and the
possibilities inherent in it for people to shape the meaning of disability).
88. See generally Rosemarie Garland Thomson, Extraordinary Bodies:
Figuring Physical Disability in American Culture and Literature (1997) (tracing
the defining of disability in the U.S. in various social, historical, and artistic
contexts).
89. See generally Tom Shakespeare, "Cultural Representation of Disabled
People: Dustbins for Disavowal?" 9 Disability & Soc'y 283 (1994) (examining both
cultural representations of impairment and disability, particularly as the
"other").
90. See generally The Body and Physical Difference: Discourses of Disability
(David T. Mitchell & Sharon L. Snyder eds., 1997) (a collection of essays
examining a variety of representations of disability in order to introduce thinking
about disability into the humanities and to reimagine people with disabilities as
the audience, rather than simply the subject, of work about disability); Sharon L.
Snyder & David T. Mitchell, Cultural Locations of Disability (2006) (tracing
eugenic thinking around disability and the consequences for the social
understanding of disability in later periods).
91. Marion Corker, Deaf and Disabled or Deaf Disabled (1998) (examining
two disparate frameworks in which deafness is understood).
disabilities as inferior, abnormal, and worthless by unpacking the

cultural patterns that produce those images in popular culture,
literature, or in film. 92 As Colin Barnes has observed, "[t]o encourage
the growth of a disability culture is no less than to begin the radical
task of transforming ourselves from passive and dependent beings
into active and creative agents for social change."93
Film 94 and literature 95 have been used as a medium through
which to analyze such representations of disability. One such
example is in Neil Marcus' illuminating words: "[d]isability is not a
'brave struggle' or 'courage in the face of adversity'. . . disability is an
art. It's an ingenious way to live."96 Linda Ware, a Disability Studies
educator, has written: "[w]hen disability is considered through a
cultural lens, ability is interrogated in much the same way that
gender is interrogated by feminist studies scholars and Whiteness is
interrogated by ethnic studies scholars." 97 Ware goes on to say that if
educators accept the challenge of reimagining disability in society, it
"will necessitate new alliances with colleagues in the humanities," 98
and, I would add, throughout the university community.
92. See Shakespeare, supra note 59, at 98 (discussing the theory of

"disability as a cultural category"). Shakespeare "suggested [in earlier research]
that the processes of denial and projection are involved in the cultural
construction of disability." Id.
93. Colin Barnes, Professor of Disability Studies, Univ. of Leeds, Effecting
Change; Disability, Culture and Art?, Paper Presented at Finding the Spotlight
Conference, Liverpool Institute for the Performing Arts (May 28-31, 2003)
(quoting K. Morrison & V. Finkelstein, Culture as Struggle: Access to Power, in
Disability Arts and Culture Papers 11-12 (S. Lees ed., 1992) (on file with author).
94. See generally Colin Barnes, British Council of Orgs. Of Disabled People,
Disabling Imagery: An Exploration of Media Portrayals of Disabled People (1992),
available at www.leeds.ac.uk/disability-studies/archiveuk/index (describing the
variety of stereotypes attached to disabled people in film and other media).
95. See, e.g., Thomson, supra note 88, at 9-12 (noting how literature has
traditionally marginalized disabled characters as either "uncomplicated figures or
exotic aliens" and that this literature reflects and reinforces marginalization in
society).
96. Neil Marcus, Disability Soc. History Project, http://www.disability
history.org (last visited Nov. 16, 2010). Neil Marcus is an artist living with
dystonia (a rare neurological impairment) who also uses a wheelchair.
97. Ware, supra note 31, at 110.
98. Id. at 120.
As Disability Studies develops in and among different fields,

the models as well as the language of Disability Studies will begin to
overlap and expand. 99
2. The Language of Disability Studies

In addition to various theories and models of disability that
have developed within the new field of Disability Studies, scholars
also have explored the use of language to describe disability as part
of the Disability Studies paradigm. A society's view of people with
disabilities, as well as the words it uses to describe them, tells a great
deal about a society's values. A society committed to justice and
equality may evidence these values through formal rules, laws and
government policies and programs. Yet, even where such rules, laws,
and programs value equality, the valuing of the people subjected to
those rules, laws, and programs cannot be assumed. "Where law is
designed to achieve the objectives of equality, and to protect and
promote even the weakest members of the community, it is necessary
that these fundamental values are reflected in everyday
experience." "o Disability Studies provides us with the tools to
understand the connection between language, power, and societal
attitudes and beliefs with respect to the place of disability in
society.'
The law, in particular, relies heavily on the written and
spoken word. Indeed, language is one of the most important tools of
our legal profession. Lawyers negotiate, interview clients, cross-
examine witnesses, present arguments in court, and rely on the
persuasiveness of words in briefs and judicial opinions.
Understanding language and the power of language is as important
to law students as it is to practicing lawyers and judges. Not only do
we strive for our students to use language well in writing (as
evidenced by the coveted nature of law review editing positions), but
new programs in legal writing and oral advocacy are now featured
99. The contributions of feminist theorists such as Susan Wendell may not
fit within one specific model, but provide an important perspective that intersects
with different models. See, e.g., Susan Wendell, The Rejected Body: Feminist
Philosophical Reflections on Disability (1996) (examining disability from multiple
perspectives including social, cultural and biomedical constructs and the project
of feminist ethics).
100. See Melinda Jones & Lee Ann Basser Marks, Valuing People Through
Law-Whatever Happened to Marion?, 17 Law in Context 147, 148 (2000).
101. Kudlick, supra note 10, at 768-69.
prominently in most law school catalogues. In a profession that relies

so much on the written and spoken word, don't we need to invite our
students to think about how we refer to other people? Who has the
right to decide what any given group of people should be called?
Which words hurt and should be avoided and which bring pride and
should be used? What does one's word choice generally reveal about
our values and our point of view?
In his often-cited article, Violence and the Word, former Yale
Law Professor Robert Cover brought into public scrutiny, perhaps for
the first time, the relationship between law, language, and
violence.'0 2 He acknowledged that words alone can bring violence and
delegitimize the individual when he wrote,
Legal interpretive acts signal and occasion the
imposition of violence upon others: A judge
articulates her understanding of a text, and as a
result, somebody loses his freedom, his property, his
children, even his life . . .. When interpreters have
finished their work, they frequently leave behind
victims whose lives have been torn apart by these
organized, social practices of violence. Neither legal
interpretation nor the violence it occasions may be
properly understood apart from one another. 0 3
The power of language is particularly relevant with respect to
words that describe people with disabilities. Word choice can reveal
values that reflect the speaker's beliefs about disability as well as
human worth, in general.104 Demeaning and degrading language that
detracts from the value of people with disabilities in society is
everywhere. "Newborns labeled as 'defective' receive substandard
care, adults marked as 'incompetent' lose all autonomy," and children
with "special needs" may face isolation from their peers. 105
Accordingly, terms such as "retard" have been replaced with "a
person with a cognitive (or intellectual) disability;" "gimp" has been
replaced with "a person with a spinal cord injury," and a "nut" or
102. Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986). See
also generally Robert M. Cover, The Supreme Court 1982 Term-Foreword:
Nomos and Narrative, 97 Harv. L. Rev 4, 40 (1983) (finding that "the
jurisgenerative principle by which legal meaning proliferates in all communities
never exists in isolation from violence").
103. Cover, Violence and the Word, supra note 102, at 1601.
104. See Macurdy, supra note 81, at 443 n.1 (citing Felix Cohen, The
Reconstruction of Hidden Value Judgments: Word Choices as Value Indicators, in
Symbols and Values: An Initial Study 545 (Lyman Bryson et al. eds., 1954)).
105. Id.
"lunatic" has been replaced with a person with a psychosocial

disorder or a consumer (or survivor) of mental health services. Such
changes in the language of disability are not merely about "political
correctness." These language changes reflect an overdue recognition
of the respect owed to people with different impairments, who are no
less part of our society, and who are no longer willing to accept labels
of exclusion and stigmatization.
Language also has unintended consequences as disability has
come to denote deficiency. Used as a metaphor, disability connotes
what is not "normal." Examples such as "dumb luck," "lame idea,"
"falling on deaf ears," "blind rage," and "stand up for yourself' are
significant for the images they present. A "crazy" or "retarded" idea is
a bad idea; "blind to the fact" means lacking knowledge or having no
understanding; and someone who is "crazy" means someone who is
out of control and not someone you would want to get to know.' 06 As
Ben-Moshe writes, "None of these signifying phrases carries positive
and empowering interpretations . .. we must be aware of the
oppressive power of 'everyday' language and try to change it."107
Within the new field of Disability Studies, Disability Studies
scholars vary regarding the language they use to refer to the people
at the center of their inquiry. Some scholars refer to "a person with a
disability" or "people first" language, which conveys the idea that
having a disability is secondary to a person's primary identity as a
"person" or "human being." Similarly, a person "labeled as disabled"
or "labeled as mentally ill," focuses on how disability or mental
illness is a socially constructed definition imposed on a person who
may or may not agree with the classification. Other scholars,
particularly in the UK, refer to "a disabled person" to draw attention
to the centrality of disability in the individual's identity. A "deaf'
person and a "Deaf' person mean very different things. The former
includes deafness as one of many adjectives that could be used to
describe the person, while the latter emphasizes the person's
membership in a culturally defined linguistic minority.
It is also important to note that each of these examples ignore
entirely other aspects of the person's identity, including the person's
race, gender, sexuality, age, ethnic, cultural or religious background,
106. Ben-Moshe, supra note 28, at 108.

107. Id. at 108-09. According to Ben-Moshe, "Using disability as an analogy
not only offends certain individuals, but also impedes clear communications,
perpetuates false beliefs about disability, and creates an environment of unease
and exclusion." Id. at 107.
or even other physical traits or personality characteristics. Seldom do

we hear "a person with a disability" described instead as "the
attractive man" or the "friendly woman," or "the bright young
student." Once a person becomes disabled, the disability itself
becomes not only the person's primary identity, as seen by others, but
more often than not the person's only identity. All other physical,
sexual, gender, intellectual, emotional or personality characteristics
of the person seem to disappear.
In addition to examining how we use language, Disability
Studies helps us to describe the large, diverse and growing number of
people with disabilities. In the U.S. today, approximately 50 million
people are considered "disabled;"'" worldwide, the estimate is around
650 million people.' 09 Disability Studies raises the question of what
so many people from so many parts of the world with so many
different abilities and impairments may possibly have in common
with each other, a commonality the single label "disability" implies.
For example, a 23-year-old white male law student at
Syracuse University who is blind may have little in common with a
78-year-old African-American blind woman who works as a teacher
in Chicago or with a 23-year-old white male law student at Syracuse
University who is Deaf. A child with autism in Egypt may have little
in common with a child with spina bifida from Canada, and a mother
in Kenya with HIV may have little in common with a father in China
who has spent time in a mental hospital. People who use
wheelchairs, those who have chronic pain, or students who learn or
write at a slower pace than other students, may have vastly different
experiences and perspectives from one another and from other people
who do not use wheelchairs, who do not live in chronic pain, or who
have higher measured intelligence. Yet people with these different
experiences share in common one important and salient feature: each
of them is perceived by their respective societies as disabled,
regardless of whether they see themselves or each other that way.
People who are blind, deaf, hard of hearing, or who have a physical or
cognitive impairment, or who are labeled mentally ill, are all
considered "disabled," and not "normal." From the "feel good" stories
108. FrequentlyAsked Questions, Office of Disability Emp't Policy, U.S. Dep't

of Labor, http://www.dol.gov/odep/faqs/people.htm (last visited Jan. 18, 2011)
[hereinafter Frequently Asked Questions] (noting that, according to Census
Bureau data, approximately "49.7 million Americans have a disability").
109. Factsheet on Persons with Disabilities, U.N. Enable, http://www.un.org/
disabilities/default.asp?id=18 (last visited Nov. 5, 2010).
about the poor "crippled" children featured in fund raising materials

to the media's idealization of youth, perfection of body and mind is
the desired (but unattainable) norm from which people with
disabilities differ."o As the Feminist Disability Studies scholar Susan
Wendell has written, "We live with particular social and physical
struggles that are partly consequences of the conditions of our bodies
and/or minds and partly consequences of the structures and
expectations of our societies, but they are struggles that only people
with bodies and/or minds like ours experience.""'
Disability Studies challenges us to reexamine our
assumptions about the universality of the concept of the norm.
Indeed, as the Disability Studies scholar Lennard Davis has
observed, "normal" itself is a fiction. As Davis explains, the term
"normal" evolved as a category during the mid-19th century's
occupation with human sciences and the rise of statistics. 12The
concept of an "average person" emerged. Prior to that time, the
standard was a "divine body," an "ideal body ... not attainable by a
human.""' The concept of an "average person" became the "normal
person," the standard against which human deviation was
measured.' 14
The concept of normal and average was even used by some
very progressive and popular thinkers throughout history. Karl
Marx, for example, used the concept of the average or normal in
relation to his notion of labor theory of value and average
wages-based on the idea of the average worker."' Despite Marx's
110. Kudlick, supra note 10, at 768.

111. Wendell, supra note 99, at 79-80.
112. The concept of normal itself did not come to be until the mid-nineteenth
century with the advance of statistics. "Statistik" was first used as a word in 1749
to signify the compilation of information about the state and it was a French
statistician in the mid 1800's who first coined the term "average man." The
average man, the idea of the man in the middle, became the symbol of the way of
life and the justification of the middle class ideology. See Lennard J. Davis,
Constructing Normalcy: The Bell Curve, The Novel, and the Invention of the
Disabled Body in the Nineteenth Century, in Disability Studies Reader, supra
note 45, at 3, 4-5; see also Longmore & Umansky, supra note 18, at 36 ("The
ascendance of normality signaled a shift in the locus of faith from a God-centered
to a human-centered world, from a culture that looked within to a core and
backward to lost Edenic origins toward one that looked outward to behavior and
forward to a perfected future.").
113. Davis, supra note 112, at 5.
114. Davis, Constructing Normalcy, supra note 112, at 4-5.
115. Id. at 5-6.
many positive contributions, some may examine his complicity in

enforcing normalcy in the sense that certain deviations from society,
in terms of the distribution of wealth, were to be kept at a minimum.
Psychologists and psychiatrists, too, are implicated. Freud's work
could not have been done without the idea of the normal.' 16 With this
concept of the norm, of course, came the concept of deviation from the
norm, and people with disabilities became the deviants.
As disability became conflated with deviance, the eugenics
movement was born. "' This movement was social, political, and
scientific. It reflected the fears of many "normal" (white) people that
they were becoming outnumbered by genetically defective members
of society including the non-whites, "feeble-minded," epileptics,
criminals, and the insane, who were passing on their "deviant genes"
at the expense of the "normal.""' By the 1900s, eugenics began to
define all people with disabilities as deviants based on the concern
116. See id. at 10.

117. See Michael Burleigh, Death and Deliverance: "Euthanasia" in Germany
c. 1900-1945 18-24 (1994) (describing how views of the mentally ill as economic
and social burdens contributed to the development of the euthanasia program in
Nazi Germany); Stanley Powell Davies, Social Control of the Mentally Deficient
59-76 (Arno Press 1976) (1930) (discussing the impact of studies on genealogy,
heredity, and fertility in raising "eugenic alarms" about the mentally ill); see also
generally Pauline Margaret Hodgson Mazumdar, The Eugenics Movement: An
International Perspective (2006). Within Disability Studies much discussion is
dedicated to eugenics, euthanasia, and the social legitimacy of genetic testing,
screening, and eventually aborting fetuses with projected impairments. All of
these are depicted by disability activists as a form of genocide, as most clearly
advocated by the organization Not Dead Yet (http://www.notdeadyet.org). Diane
Coleman of Note Dead Yet has, for example, described Peter Singer "as 'a public
advocate of genocide."' Johann Hari, Peter Singer: Some People are More Equal
than Others, The Independent (UK), June 4, 2004, at 2. For other discussions of
this subject, see also; Ruth Hubbard, Abortion and Disability-Who Should and
Who Should Not Inhabit The World, in The Disability Studies Reader, supra note
45, at 93, 99 (arguing that selective abortions are based in a eugenic ideology
similar to that which existed in Nazi Germany); and Russell, supra note 49, 18-29
(describing the killings of disabled people through the Nazi euthanasia program
as a "holocaust").
118. See Martin Pernick, Defining the Defective: Eugenics, Aesthetics, and
Mass Culture in Early 20th-Century-America, in The Body and Physical
Difference: Discourses of Disability, supra note 90, at 89, 89-110 'exploring the
use of aesthetic values in "eugenic constructions of hereditary disease and
disability" and noting that "[elugenic popularizers promoted definitions of
ugliness that reinforced their judgments on other human differences, including
gender, class, race, and nationality"); and Steven Selden, Eugenics and the Social
Construction of Merit, Race and Disability, 32 J. Curr. St. 235, 235-49 (2000)
(discussing the popularization of eugenics in a variety of educational settings).
that individual differences and "defects" would permeate the national

identity. "9 This view led to eugenics laws and forced sterilization. By
1941, 33 U.S. states had endorsed sterilization policies.120 Even today,
sterilization of women with cognitive disabilities continues in many
countries. 121 While we usually think of eugenics associated with
Nazism, it was not a fringe group in the United States. Historians of
disability policy have written persuasively about how eugenics was
part of the work of many enlightened thinkers, and was even
included on socialist platforms. Emma Goldman, for example, wrote
that unless birth control was encouraged, the State would "legally
encourage an increase in paupers, epileptics, cripples, and
degenerates ... 122
Thus regardless of how people with disabilities see
themselves or each other, for centuries they have been referred to as
not "normal" by the majority who are presumed to be strong,
intelligent, sighted, hearing, ambulatory, in control, able bodied, and
non-disabled. Disability Studies scholars have begun to pay attention
to the eugenics movement not only because of its place in history, but
because of its modern day equivalents, which some say are
euthanasia ("mercy killing") and the social legitimacy of genetic
119. Davies, supra note 117, at 59, 79 (describing the influence of the work of
Sir Francis Galton in 1901 and of the British Royal Commission's 1908 study in
popularizing the supposed heredity of "feeblemindedness" and its relationship to
social problems, respectively).
120. As Stanley Powell Davies explains in Social Control of the Mentally
Deficient, the eugenics measures used in the early twentieth century emerged
from a belief that 'feebleminded' individuals should be prevented from
reproducing and should be institutionalized because they posed dangers to
society." Davies, supra note 117, at 76. See also generally Mazumdar, supra
note 117.
121. In response to the continuing practice of forced sterilization in some
countries, the newly adopted UN Convention on the Rights of People with
Disabilities includes a specific article prohibiting discrimination regarding
pregnancy planning and involuntary sterilization. See Convention on the Rights
of Persons with Disabilities, G.A. Res. 61/106, art. 23, U.N. Doc. A/RES/61/106
(Jan. 24, 2007). The Convention was adopted by consensus by the General
Assembly on August 25, 2006, together with its Optional Protocol. Optional
Protocol to the Convention on the Rights of Persons with Disabilities. G.A. Res.
61/611, $[ 1, U.N. Doc. A/61/611 (Dec. 6, 2006). The CRPD text, along with its
drafting history, resolutions, and updated list of signatories and States Parties is
posted on the United Nations Enable website, available at http://www.un.org/esal
socdev/ enable/rights/convtexte.htm.
122. See Davis, Constructing Normalcy, supra note 112, at 8 (citing Daniel
Kevles, In the Name of Eugenics and the Uses of Human Heredity (1985)).
testing, screening, and abortion of fetuses with abnormalities. 23 To

the extent that such contemporary practices continue to define who is
normal and therefore who should live, the challenge for Disability
Studies scholars is, in Lenny Davis' words, "to reverse the hegemony
of the normal and to institute alternative ways of thinking about the
abnormal."l124
III. INTRODUCING DISABILITY LEGAL STUDIES
A. Where Law and Disability Studies Meet

In order to discuss what the law can learn from Disability
Studies, we must first define what we mean by "law." Traditionally,
laws are written by legislators, interpreted by courts, and enforced by
the government. As such, the "law" is a collection of rules imposed by
authority; a legal document setting forth rules governing a particular
kind of activity; a rule or body of rules of conduct inherent in human
nature and essential to or binding upon a society; a generalization
that describes recurring facts or events in nature. It also
encompasses jurisprudence, the branch of philosophy concerned with
the principles that lead courts to make the decisions they do as well
as the profession that is mastered by graduate study in a law school
and that is responsible for the judicial system.
Law is the ultimate conservative authority in any given
society.125 Societies enact laws to maintain order and prevent harm to
persons and property. Laws also serve to mediate relations between
people. But above all, to the extent that law is generally viewed as a
123. See supra note 117. See also Jacqueline Vaughn Switzer, supra note 63,
at 148-52 (discussing the history of Not Dead Yet, and the rise of the
organization as a countermovement to the right-to-die movement); See
also Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or
Compatible?, 30 Fla. St. U. L. Rev. 315, 332-341 (2003) (discussing the rationales
for prenatal testing and arguing that, to create a more accepting society for
people with disabilities, medical professionals must "convince those parents to
learn about how children and adults [with disabilities] survive and thrive; and
then endorse the choices people make about their reproductive and family lives").
124. Id. at 15.
125. The role of law in society has been viewed differently over time. Writing
in 350 BCE, the Greek philosopher Aristotle declared, "The rule of law is better
than the rule of any individual." (This translation reads, "[I]t is more proper that
law should govern than any one of the citizens.") Aristotle, Aristotle's Politics 3.16
(W.E. Bolland trans., 1877).
system of rules that shape politics, power, and society, it becomes the
vehicle with which the status quo and existing power relationships
are maintained. 126 Indeed, laws are designed to conserve and
preserve the rule of law. But do they? And, on whose behalf and for
whose benefit? These are some of the questions that critical legal
theorists as well as Law and Society scholars have raised.127 These
126. The legal philosopher H. L. A. Hart argues that law is, in fact, a "system
of rules." H. L. A. Hart, The Concept of Law 99 (1961). In this system, the
judiciary's role is to apply the facts before it to the law (though Hart's thesis does
contemplate the existence ofjudicial discretion). See id. at 121-50 (describing the
appropriate role of judges within the extreme paradigms of formalism and rule-
skepticism). Ronald Dworkin, however, describes law as an interpretive concept
aimed at achieving justice. Although Dworkin recognizes that "the law" may not
always be clear with respect to whether certain conduct is permitted or
prohibited, the moral principles embedded in the law's purpose and intent should
provide guidance on the law's meaning and its application to particular facts. See
Ronald Dworkin, Law's Empire 410-11 (1986). Is there a duty to obey the law?
What value has the rule of law? See also generally H. L. A. Hart, Punishment and
Responsibility: Essays in the Philosophy of Law 1-27 (Oxford University Press,
2nd ed. 2008) (1970); John Rawls, A Theory of Justice (1971); Joseph Raz, The
Morality of Freedom (1988) (all contemplating these questions); cf Amartya Sen,
The Idea of Justice, at x (2009) ("Justice is ultimately connected with the way
people's lives go, and not merely with the nature of the institutions surrounding
them.").
127. Critical Legal Studies (CLS) has been defined as "a theory that
challenges accepted norms and standards in legal theory and practice. According
to this view, the law exists and is used to support the interests of the class that
has developed it." See Critical Legal Theory Definition, Wex Dictionary, Legal
Info. Inst., Cornell Univ., http://topics.law.cornell.edulwex/CriticallegaLtheory
(last visited Nov. 9, 2010); see also Pierre Schlag, Critical Legal Studies, in 2
Oxford International Encyclopedia of Legal History 295, 295-299 (S. Katz ed.,
2009) (Defining CLS as an academic movement built on the rejection of"orthodox
forms of legal scholarship" and a "distrust of "institutional authority"); Andrew
Altman, Critical Legal Studies-A Liberal Critique 3 (1990) (suggesting that the
point of the critical legal studies movement provides a critique of liberal legal and
political philosophy and consists of literature generated by legal scholars which
challenges the most cherished ideals of modern western legal and political
thought). For other seminal discussions of critical legal theory, see generally: The
Canon of American Legal Thought, (David W. Kennedy & William Fisher eds.,
2006) (a broad anthology of American legal thinkers, including those involved in
CLS); Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political
Philosophy of Justice (2005); Legal Education and the Reproduction of Hierarchy:
A Polemic Against the System: A Critical Edition (Duncan Kennedy ed., 2004);
Ian Ward, An Introduction to Critical Legal Theory (2d ed. 2004); Left
Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002); Richard W.
Bauman, Ideology and Community in the First Wave of Critical Legal Studies
(2002); Janet E. Halley, "Like Race" Arguments, in What's Left of Theory? 40
(Judith Butler et al. eds., 2000); David Kairys, The Politics of Law : A Progressive
also are questions that are relevant to Disability Legal Studies

scholars today.
For the purposes of the present discussion, there is little
question among legal scholars that law governs a wide variety of
social activities and human interactions. But law can mean many
different things depending on its context. Our legal system
elaborates rights and responsibilities in a variety of ways that raise
important and complex issues concerning equality, fairness, liberty,
justice, and power relations.1 28
Law is also a profession and an academic discipline. The
academic study of law, both as a science (jurisprudence), and by
students preparing to become licensed to practice law, is taught in
the United States at specialized postgraduate law schools. In other
countries, students take law as their first degree or as a one year
course after majoring in another discipline. Yet, in the United States
and most countries throughout the world today, legal education
focuses on the doctrine of law as well as the skills and procedures
necessary for the practice of law as a profession. Legal education
seeks to equip soon-to-be lawyers with knowledge and skills
pertaining to the law, the legal process, and the legal system, as well
as the fundamental principles and values on which these are based.
It seeks to foster the knowledge, skills, and values that graduates
need to function effectively in a pluralistic, democratic society based
on the rule of law. Although legal education has evolved in the past
century in the U.S. and elsewhere, its structure and format remains
Critique (3d ed., 1998). Duncan Kennedy, A Critique of Adjudication [Fin de

Sibcle] (1997); Richard W. Bauman, Critical Legal Studies: A Guide to the
Literature (1996); Mark Kelman, A Guide to Critical Legal Studies (1987); John
Finnis, On the CriticalLegal Studies Movement, 30 Am. J. Juris. 21 (1985); and
Roberto M. Unger, The Critical Legal Studies Movement (1983).
128. Contract law regulates everything from your cell phone service to
renting an apartment. Property law defines rights and obligations related to the
transfer and title of your car, home, or womb. Tort law provides remedies for
persons who have been injured or whose property has been harmed. If the injury
or harm is outlawed in the penal code, criminal law offers the means by which the
state can prosecute the perpetrator. Constitutional law provides a framework for
the creation of laws, the allocation of powers of the branches of government
within society, and the protection of civil rights and the election of political
representatives. Administrative law is used to review the decisions of government
agencies. Finally, international law governs affairs between sovereign nation
states in activities ranging from trade to environmental regulation to the newly
adopted United Nations Convention on the Rights of Persons with Disabilities.
strikingly similar to the days of Langdell and the founding of the

nation's first law school. 129
Over the decades, many legal scholars have begun to explore
the relationship between law and society and to ask critical questions
about the role of law in society. 3 0 What is the proper function of law?
What sorts of acts should be subject to punishment, and what sorts of
punishment should be permitted? What is justice? What rights do
"we" have? Who is "we" and who bestows which rights on others?
Who makes the laws and who defines who breaks the laws? To the
extent that law governs relations between people, and between the
state and individuals, how does law facilitate or impede access to
power, justice, fairness, and responsibility?
Indeed, legal issues related to difference and power have been
studied for at least three decades within the legal academy.
Throughout the 1960s and into the 1990s, law and society as well as
the critical legal studies movement, critical race theorists, feminists
legal scholars, queer legal studies and postmodernism, each, in their
own way, have challenged the academy to look at how decisions are
made and for whose benefit.
Early law and society scholars drew on social sciences "to
provide insights about both the ways that prevailing legal norms
tend to legitimate social hierarchy and the complex manifestations of
legal claims and tactics by groups aiming to challenge those
hierarchies and injustices. Indeed, socio-legal scholars have
contributed many types of studies-of judicial impact, interest group
litigation, cause lawyering, the politics of rights, civil disputing, and
everyday resistance, to name just a few-that are highly relevant to
understanding the relationships of law and social movements." 131
129. See M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to
Langdell, in The History of Legal Education in the United States: Commentaries
and Primary Sources 589, 589 (Steve Sheppard ed., 1999) (discussing Langdell's
initiation of the case-method of legal education); see also The Gladsome Light of
Jurisprudence: Learning the Law in England and the United States in the 18th
and 19th Centuries 2-8 (Michael H. Hoeflich ed., 1988) (describing the two
models of legal education, the apprenticeship model and the school model).
130. For one introduction to the study of law and society, see generally
Lawrence M. Friedman, et al., Law & Society: Readings on the Social Study of
Law (1995).
131. Michael McCann, Law and Social Movements: Contemporary
Perspectives, 2 Ann. Rev. Law Soc. Sci. 17, 18 (2006).
Critical legal studies, building on the realists' critiques of

law, exposed the relationship between law and power, claiming that
the law is not neutral or value-free, but rather an active participant
in power dynamics. 132 Accordingly, critical legal theorists have
characterized the law as a set of rules used by the powerful to
oppress the powerless and focuse their inquiry on questions related
to access to power.133 To them, law is politics.
Feminist legal theorists also have constructed their criticism
of law by asking such questions as how does law exclude women?
How can law be reformulated to incorporate experiences of women?
How can feminist legal theory reconfigure existing law? And with
regard to disability, feminists may ask how existing feminist legal
scholarship in family, labor, caretaking, reproduction, and sexuality
can be reformulated to incorporate the experiences and perspectives
4
of women with disabilities?1 3
By contrast, the role of disability in law has been less
studied.'3 1 Yet Disability Studies has enormous potential within the
132. For a detailed analysis of critical legal theory, see Ward, supra note 127,
at 144. For collections providing a general overview of critical legal theory
through a variety of essays and approaches, see Radical Critiques of the Law
(Stephen M. Griffin & Robert C.L. Moffat eds., 1997); Kairys, supra note 127.
133. For examples of the application of critical legal studies to racial justice
and equality issues, see generally: Derrick Bell, And We Are Not Saved: The
Elusive Quest for Racial Justice (1989); Ian F. Haney Lopez, White By Law: The
Legal Construction of Race (1996); Patricia J. Williams, The Alchemy of Race and
Rights (1991); Richard Delgado, Two Ways to Think About Race: Reflections on
the Id, the Ego, and Other Reformist Theories of Equal Protection, 89 Geo. L.J.
2279 (2001); Mari J. Matsuda, Voices of America: Accent, AntidiscriminationLaw,
and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329 (1991);
Reginald Leamon Robinson, Race, Myth and Narrative in the Social Construction
of the Black Self, 40 Howard L.J. 1 (1996).
134. For an overview of feminist legal theory, see generally Kathryn Abrams,
The Constitution of Women, 48 Ala. L. Rev. 861 (1997) (describing various
theories of feminist criticisms of law); Frug, A Postmodern Feminist Legal
Manifesto, supra note 5 (Professor Frug's unfinished work, describing in part the
way in which law sexualizes, terrorizes, and maternalizes the female body);
Karst, supra note 5 (examining the social construction of the idealized place of
woman in society through constitutional law and the potential consequences of
reshaping the law to take into account the female perspective); Silvers, supra
note 5 (examining the possibilities for incorporating a disability perspective into
feminist thinking).
135. See Sagit Mor, Between Charity, Welfare, and Warfare: A Disability
Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy, 18
Yale J.L. & Human. 63, 77-78 (2006) (acknowledging disability critiques of law
are rare).
legal academy. Scholars are now beginning to inquire into which

legal theories inform the transforming and reconceptualizing of both
law and disability. Disability Studies presents a lens through which
to examine the place of law in society and to pose such question as:
How do legal definitions of disability regulate, exclude, and/or protect
marginalized populations based on their physical and mental
differences, gender, economic status, race, ethnicity and sexual
orientation? What are the roles of human rights, formal equality, and
anti-discrimination legislation in various approaches to disability?
What can people with disabilities offer to reconfigure existing law?'
By infusing a Disability Studies perspective into the law, we may
shed light on complex lessons about our culture, society, minority
rights, power, authority, and the role of law in changing society just
as issues of race, ethnicity, gender, and sexual identity have recently
informed our understanding of society and power. 137
B. Why Teach Law from a Disability Studies Perspective

Only recently have legal scholars begun to explore the
intersection of Law and Disability Studies. This new field, called
"Disability Legal Studies," refers to scholarship that seeks to apply a
Disability Studies perspective to law.' An Israeli scholar, Sagit Mor
has written,
136. These questions are drawn from an announcement calling for paper
submissions to a feminist theory workshop. Call for Papers:Feminism Disability
Theories and the Law, Disability Studies: Conferences, Call for Papers & Call for
Nominations, Feminism & Legal Theory Project, Emory Univ.
(Oct.5, 2009), http://disabilitystudiescfp.blogspot.com/2009/10/call-for-papers-
feminist-disability.html.
137. "Just as feminist critique has relied on the sex/gender dichotomy to
explain the complex relations between one's biological sex and the construction of
gender through social roles, so has disability critique developed a valuable
distinction between impairment, which stands for the biological condition that a
person might have, and disability, which signifies the social and cultural barriers
that are imposed on that person in various ways due to the impairment." Sagit
Mor, Imagining the Law: The Construction of Disability in the Domains of Rights
and Welfare-The Case of Israeli Disability Policy 21 (2005) (J.S.D. thesis, N.Y.U.
School of Law) available at http://works.bepress.com/sagitmor/5. But see Tom
Shakespeare & Nicholas Watson, The Social Model of Disability: An Outdated
Ideology?, 2 Res. in Soc. Sci. & Disability 9, 14-15 (2002) (arguing that Disability
studies should abandon disability/impairment binary just as feminist theory has
abandoned the binary between sex/gender).
138. Mor, supra note 135, at 64.
Although disability studies' critique is not altogether

new to some legal scholars, it has not yet gained
adequate recognition in legal discourse. I maintain
that the time has come to identify, introduce, and
label the field of DLS [Disability Legal Studies], bring
it to light, attend to its premises, and incorporate its
lessons into legal theory and practice. I further
suggest that attending to [Disability Legal Studies]
would bring a shift in writing on disability and the
law from a focus on doctrinal analysis or policy
advocacy to a research regarding the constitutive role
of law in the production of disability. 139
Indeed, legal scholars, law students, and lawyers are
generally familiar with disability as a legal issue. Through the
disability rights movement and the enactment of various disability
rights laws, lawyers, Congress, and the courts have become familiar
with disability in the context of the Americans with Disabilities Act
and its provisions regarding anti-discrimination, accommodations,
and accessibility. But the new field of Disability Legal Studies looks
beyond the traditional view of equality, as in the Lockean view that
each person has the right to be treated like anyone else.140 Disability
Studies sees disability as a social construct shaped by social systems
of domination, and it seeks to challenge -the way disability is
constructed by law locally, nationally, and globally. A study of
disability in law, particularly in a global context, provides us and our
students the opportunity to discuss how to bridge this gap between
civil rights and human rights and between formal and substantive
equality.
139. Id. (footnote omitted). Mor goes on to explain,

Incorporating the lessons of disability critique into legal
education is a radical move, as it seeks to transform
mainstream legal education. In the context of disability it is an
act of resistance, since usually people with disabilities are
expected to be mainstreamed into the "normal" education
system. Shifting the burden of mainstreaming from the
individual person to social institutions is a first step in
employing disability critique ....
Id. at 64 n.4.
140. See John Locke, Second Treatise of Civil Government §§ 87, 95 (1690),
available at http://www.constitution.org/jl/2ndtreat.htm; see also generally Rawls,
supra note 126 (proposing the idea of "justice as fairness" and arguing that laws
are just if we would have chosen them without knowledge of our relative positions
in society).
Yet the question remains: What does a Disability Studies

perspective have to do with what we, as law teachers, do in our
classrooms? How would a disability legal studies perspective help law
students or lawyers understand contracts, torts, evidence, or tax? Put
another way, why would law faculty choose to integrate Disability
Legal Studies into the law school curriculum?
As I will explain below, to the extent that law reflects
society's norms, values, and intolerances, it is an arbiter of power
relations. As such, law itself can become part of the problem by
creating social barriers and classifications based on competency or
abilities. As Jones and Marks have observed, "even very many well
intentioned protective laws may undermine the rights of people with
disabilities."41 However, they also admit that "law is an important
tool ... [whose] educative and symbolic value is not to be
underestimated."l 42 Just as the law can create social barriers by
creating classifications based on competency or abilities, therefore, it
can also foster equality and inclusion. Stated differently, law can be a
source of social change through the enactment and implementation of
progressive laws and inclusive interpretation of laws by attorneys
and the courts. The law can inform Disability Studies with respect to
how a given society includes or excludes people with disabilities. It
provides a framework with which to assess the infusion of Disability
Studies values into society. Disability Legal Studies provides the
tools to explore such regenerative aspects of law.143
Within law, a shift has already begun to take place from the
traditional doctrinal analysis forbidding discrimination on the basis
of disability '" to a more textured understanding of people with
141. Melinda Jones & Lee Ann Basser Marks, Law and the Social
Construction of Disability, in Disability, Divers-ability and Legal Change, supra
note 100, at 3, 4.
142. Id. at 16.
143. One positive example of law is the recent adoption of the United Nations
Convention on the Rights of People with Disabilities (CRPD). The CRPD creates,
for the first time, affirmative obligations on State Parties to recognize people with
disabilities and ensure their equality throughout all aspects of society. Although
the implementation of the specific mandates in the CRPD will vary from country
to country and even within a given country, the role of the CRPD in advancing
the cause of people with disabilities worldwide cannot be ignored. See Arlene S.
Kanter, The Promise and Challenge of the United Nations Convention on the
Rights of Persons with Disabilities,34 Syracuse J. Int'l L. & Com. 287, 290 (2007).
144. See Bagenstos, supra note 70, at 7 (arguing in part that the concept of
disability has been socially constructed by "the interaction between societal
barriers .. . and a medical impairment"); Peter David Blanck & Mollie Weighner
disabilities as a minority group and growing attention to disability as

a social construct. 145 But even within this understanding, law is
perceived as an instrument for social change through established
mechanisms, such as statutes and court decisions. The law is still
viewed "as separate from society, [and] as a reflection of social
relations and cultural meanings." 146 A Disability Legal Studies
analysis would ask instead how and in what ways the law has
participated in forming those hierarchies and how they are related to
the overall exclusion and marginalization of people with
Marti, Attitudes, Behavior and the Employment Provisions of the Americans with
DisabilitiesAct, 42 Vill. L. Rev. 345 (1997) (discussing the importance of societal
attitude toward persons with disabilities in the context of the ADA); Robert L.
Burgdorf, Jr., The Americans with DisabilitiesAct: Analysis and Implicationsof a
Second-Generation Civil Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413 (1991)
(analyzing the ADA in relation to other civil rights legislation); Robert L.
Burgdorf, Jr., "SubstantiallyLimited" Protection from Disability Discrimination:
The Special Treatment Model and Misconstructionsof the Definition of Disability,
42 Vill. L. Rev. 409, 423-24 (1997) (arguing against a "preferred group mentality"
that attempts to provide special protections for persons with disabilities); Ruth
Colker, The Americans with DisabilitiesAct: A Windfall for Defendants, 34 Harv.
C.R.-C.L. L. Rev. 99, 160 (1999) (discussing pro-defendant bias in ADA litigation);
Chai R. Feldblum, Definition of Disability under Federal Anti-Discrimination
Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp.
& Lab. L. 91 (2000); Pamela S. Karlan & George Rutherglen, Disabilities,
Discrimination,and Reasonable Accommodation, 46 Duke L.J. 1 (1996) exploring
the differences between traditional civil rights law, forbidding discrimination, and
the ADA, mandating discrimination in favor of disabled individuals); William J.
McDevitt, Defining the Term "Disability"Under the Americans with Disabilities
Act, 10 St. Thomas L. Rev. 281 (1998) (discussing the complexities of defining
disabilities under the ADA and the potential for that definition to alter the
conception of disabilities).
145. See Mor, supra note 135, at 79-80; see also Mary Crossley, Reasonable
Accommodation as Part And Parcelof the AntidiscriminationProject, 35 Rutgers
L.J. 861, 863-64 (2004) ("T]he primary barriers faced by people with disabilities
lie in how society has historically structured its institutions, attitudes, and
physical environments."); Matthew Diller, Judicial Backlash, the ADA, and the
Civil Rights Model, 21 Berkeley J. Emp. & Lab. L. 19, 24-31 (2000) (discussing
judicial misunderstanding of the ADA); Jonathan C. Drimmer, Cripples,
Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and
Social Policy for People with Disabilities, 40 UCLA L. Rev. 1341, 1385-1401
(1993) (exploring the development of federal law concerning people with
disabilities and discouraging legislation based on social and medical pathology
models).
146. See Mor, supra note 135, at 75 (discussing the prevailing use of the
"minority group" or "rights" models by legal scholars looking at disability issues
as engendering this view).
disabilities.147 If we were then to examine law through the Disability

Legal Studies lens, the emphasis would be on how people with
disabilities are excluded within the law, and how inclusion may
occur. As Colin Barnes, Geof Mercer, and Tom Shakespeare have
written,
While the voice of disabled people and their
organizations is being heard more often and more
distinctly than before, the struggle for improved socio-
economic conditions, for a better quality of life, and
for citizenship rights generally goes on. Recent policy
debates ranging across welfare benefits and services
to abortion and euthanasia have increased the
suspicions of disabled people. There is generally a
much-changed political rhetoric responding to
disabled people's claims, and in considering research
evidence and making policy proposals, but promised
improvements all too often fail to materialize.148
From a practical view, it is true. Most people with disabilities
believe that things have not gotten much better for them over the
past twenty years, even with the enactment of the Americans with
Disabilities Act.149 Why is this so? What are the root causes of these
problems? And most importantly, what can we do to alter this
situation? Such questions are (or should be) central to the study of
law. These questions raise important issues regarding the concepts of
justice, power, equality, and liberty. Indeed, the relationship between
citizen and society is essential to legal education, although different
law schools give priority to different subject areas or skills.
In most law schools today, there are some courses that focus
primarily on law that affects the daily lives of all people, including
criminal and civil law. Other courses focus on fundamental legal
concepts and principles, including those principles' origin and
contemporary influence and impact. Other courses stress the
application of legal principles and skills in specific real-world
147. See id. at 82.

148. Barnes, Exploring Disability, supra note 56, at 227.
149. See Bagenstos, Law and the Contradictions of the Disability Rights
Movement, supra note 70, at 117-18; see also Samuel R. Bagenstos, Has the
Americans with Disabilities Act Reduced Employment for People with
Disabilities?,25 Berkeley J. Emp. & Lab. L. 527, 533-34 (2004) (arguing that the
ADA did not "succeed . . . in improving the employment rates for people with
disabilities"); Samuel R. Bagenstos, The Future of DisabilityLaw, 114 Yale. L. J.
1, 20 (2004) (stating that some commenters "contend that the [ADA] in fact
caused the drop in disability employment in the 1990s").
situations, through clinics and externship experiences. And other law

schools highlight courses that examine law as an institution that
provides its government with power and authority that can bring
both order and the risk of abuse, as well as the relationship between
power and law, as was the focus of the critical legal studies
movement. In so doing, legal education has the potential to
understand how law can and has promoted inclusion, social cohesion,
and social change. Disability Legal Studies is relevant to our law
school curriculum and the legal academy in general for the following
reasons. 5 0
1. Disability Is "Us"
The first reason why a Disability Legal Studies perspective is
relevant to the study of law is that disability itself directly or
indirectly affects most everyone, everywhere. Throughout the world
today, it is estimated that over 650 million people are disabled.'"
Estimates of people with disabilities in the United States in 1991
found that they make up 19.4% of the population, equivalent to 50
million people.' 5 2 In addition to people with disabilities themselves,
their family members, caregivers, friends, teachers, colleagues, and
neighbors are also affected by disability, so that perhaps as many as
half of the U.S. population may be said to be affected by disability.
Therefore, people with disabilities are "too large [a minority] to
ignore."5
Moreover, if not now, at some point in the future, practically
everyone (including law students, lawyers, and law faculty) will
either experience disability directly, or know someone with a mental
or physical impairment. Accordingly, it may be said that we are all
"temporarily-able-bodied" or "T.A.B." because sooner or later most of
us will be disabled at some point in our lives; whether it comes sooner
or later varies depending upon one's circumstances. As scholars like
150. See Syracuse Univ. Ctr. on Human Policy, Law, and Disability Studies,
Disability Studies for Teachers, available at http://www.disabilitystudies
forteachers.org/index.php; Linton, Disability Studies/Not Disability Studies,
supra note 12, at 525-40; see generally Bryen and Shapiro, supra note 8 (all
emphasizing the importance of strong disabilities studies programs).
151. Factsheeton Persons with Disabilities,supra note 109.
152. Id. See also Population Profile of the United States, U.S. Census
Bureau, http://www.census.gov/population/www/pop-profile/disabil.html (1991);
FrequentlyAsked Questions, supra note 108.
153. Davis, Bending Over Backwards, supra note 14, at 4.
Susan Wendell have explained, factors "such as race, class, gender,

nationality, and age can have a significant impact on the experience
of living with an impairment and its disabling consequences."' 5 4 But
the fact remains that anyone can become disabled at any time.
Further, people with disabilities are one of the fastest
growing minorities in the world.' As more people live longer due to
advances in medical research and technology, more people may be
expected to acquire impairments and become disabled in old age.' 56 In
1980, it was estimated that 370 million people were over the age of
60.'" Today one in ten people is now 60 years of age or older.' In
Italy, Germany, and Japan, more than 20 percent of the countries'
respective populations are now over 65.159 By 2025, there will be
1.1 billion elderly people worldwide.160
Not only is the population of people with disabilities and
those affected by it increasing, but people with disabilities
themselves have become more visible within society. This increased
visibility of people with disabilities in the United States is due in
large part to the changing view of disability brought about by the
154. Kudlick, supra note 10, at 768 (citing generally the work of Wendell and
others).
155. See Wendell, supra note 99, at 18 (noting that "aging is disabling" and
that recognition of this fact "helps non-disabled people to see that people with
disabilities are not 'Other.' . . . Unless we die suddenly, we are all disabled
eventually").
156. Arlene S. Kanter, The United Nations Convention on the Rights of
Persons with Disabilities and its Implications for the Rights of Elderly Persons
Under InternationalLaw, 25 Ga. St. U. L. Rev. 527, 528 (2009); Sarah Moses, A
Just Society for the Elderly: The Importance of Justice as Participation,21 Notre
Dame J.L. Ethics & Pub. Pol'y 335, 336-38 (2007). See generally Aimee R. Fagan,
An Analysis of the Convention on the InternationalProtection of Adults, 10 Elder
L.J. 329 (2002) (discussing the rights of elderly people as they travel abroad).
157. Lung-chu Chen, Aging: A New Human Rights Concern-A Policy-
Oriented Perspective, 81 Am. Soc'y Int'l L. Proc. 169, 175 (1987) (quoting remarks
by Philip Alston noting this statistic in support of the proposition that there
should be growing interest in the rights of the aging).
158. The Aging of the World's Population, Population Div. of the Dep't of
Econ. & Soc. Affairs of the United Nations, http://www.un.org/esalsocdev/ageing/
popageing.html (last visited Nov. 21, 2010).
159. Tracy McNicoll, Aging Crisis Will Soon Hit Developing World,
Newsweek Wealth of Nations Blog (Sept 10, 2009), http://www.newsweek.com/
blogs/wealth-of-nations/2009/09/10/aging-crisis-will-soon-hit-developing-
world.html.
160. Chen, supra note 157, at 175 (quoting remarks by Philip Alston noting
this statistic).
enactment of laws outlawing discrimination against people with

disabilities, such as the Individuals with Disabilities in Education
Act (IDEA),16 ' the Rehabilitation Act,1 62 the Federal Fair Housing
Amendments Act,163 and the Americans with Disabilities Act.'"
One can simply look at the list of the original supporters of
the Americans with Disabilities Act, for example, to see that each of
them either has a disability or a family member with a disability:
Tony Coelho, a Congressman from Maryland, who sponsored the
original ADA bill in the House, uses a wheelchair; Steny Hoyer's wife
has epilepsy; Senator Lowell Weicker has a son with Down
Syndrome; Senator Bob Dole and Senator Bob Kerry are disabled war
veterans; Senator Tom Harkin had a Deaf brother; Senator Edward
Kennedy had a son who lost a leg and a sister who with a
developmental disability; Senator Orrin Hatch has a brother-in-law
with post-polio syndrome. 165
Further, within the legal profession, more individuals with
disabilities are working as lawyers, and more students with
disabilities are attending law school. 166 In U.S. law schools, it is
161. Individuals with Disabilities Education Improvement Act of 2004, Pub.

L. No. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C. §§ 1400-1482
(2004)).
162. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as
amended at 29 U.S.C. 701 et seq. (2006)).
163. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat.
1619 (codified as amended at 42 U.S.C. §§ 3601-3631 (1988)).
164. Americans with Disabilities Act of 1990, Pub. L. No. 101-336,104 Stat.
327 (codified as amended at 42 U.S.C. § 12101-12300 (2004)).
165. Michael Stein, Same Struggle, Different Difference: ADA
Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579, 627 n.201 (2004).
166. The number of lawyers with disabilities in the U.S. is difficult to
ascertain. Only three of 54 American jurisdictions that license attorneys collect
information on lawyers with disabilities. However, the American Bar Association
compiles disability-related statistics on the legal profession based on the ABA's
annual census. See ABA Comm'n on Mental & Physical Disability, ABA Disability
Statistics Report 4-5 (2010), available at http://new.abanet.org/disability/
PublicDocuments/ABADisabilityStatisticsReport.pdf. According to the ABA's
2009 annual census in the report, 1,658, or 6.76%, of the ABA's 383,000 members
in 2009 answered affirmatively to the question "Do you have a disability?" That
percentage is an increase from the 2008 figure of 6.69%, but a decrease from the
2007 figure of 7.18%. Id. at 4. The ABA noted in 2010 that "Douglas Kruse of
Rutgers University and the National Bureau of Economic Research, using the
2007 ACS micro data, reports an even lower number citing, out of the 1.08 million
Americans who are lawyers or judges, magistrates, and other judicial workers,
only 3.8% have a reported disability." Id. at 4. The U.S. Bureau of Labor
Statistics reported "that for the third quarter of 2009 (July, August, and
estimated that at least ten percent of law students have a disability,

although the number is likely higher since many law students do not
self-identify due to the stigma of disability that still remains in
society and within law schools today.16 1
September), 2.6% of those employed in the legal occupation (e.g., lawyers, judges,
magistrates, law clerks, court reporters, paralegals) had a disability." Id. This
figure was slightly lower that the second quarter's 2.9%. Id. As to law students,
the ABA Office of Legal Education and Admissions to the Bar found that in the
academic year just ending, 2009-10, 4,941 (3.2%) of the 154,549 law students in
ABA-accredited law schools (both J.D. and LL.M students), were provided
accommodations-an increase from 4,111 (2.7%) for 2008. Id. at 5. The ABA
cautioned, however, that "despite such increases, it is worth noting that these
figures do not reflect an actual estimate or figure as to how many law students in
ABA-accredited law schools have a disability." Id. Finally, as to the employment
rate of law graduates with disabilities in 2008, "84.4% of 565 law graduates with
disabilities were employed, compared to about 90.9% of 28,891 non-minority (men
and women) law graduates and 87% of 8,395 minority law graduates. Although
the employment rate has decreased for both those with disabilities and those
without disabilities, there is an overall decrease in the number of 2008 graduates
with disabilities compared to the class of 2007." Id. The American Bar
Association Commission on Mental and Physical Disability also sponsors an
annual conference on lawyers with disabilities and a mentoring program for
lawyers and students with disabilities. See Resources & Opportunities for
Lawyers with Disabilities, Am. Bar Ass'n, Comm'n on Mental & Physical
Disabilities, http://new.abanet.org/disability/Pages/default.aspx (last visited June
24, 2010). For information about women with disabilities in the legal profession,
see generally Carrie Griffin Basas, The New Boys: Women with Disabilities and
the Legal Profession, 25 Berkeley J. Gender L. & Just. 32 (2010). In this article,
the author reports on the first national study of women attorneys with disabilities
in the United States. Thirty-eight attorneys participated and their narratives
form the basis for critical analysis of disability animus and discrimination in the
legal profession. The results demonstrate that disabled female attorneys will self-
accommodate at work, instead of calling on employers to conform with their
obligations under the Americans with Disabilities Act. Id. at 32, 59-76.
167. See Kevin Smith, Disabilities, Law Schools and Law Students: A
Proactive and Holistic Approach, 32 Akron L. Rev. 1, 2 (1999); Donald Stone,
What Law Schools are Doing to Accommodate Students with Learning
Disabilities, 42 S. Tex. L. Rev. 19, 26 (2000) (noting the risks faced by law
students who self-identify as having a mental disability); Donald Stone, The
Impact of the Americans with DisabilitiesAct on Legal Education and Academic
Modifications for Disabled Law Students: An Empirical Study, 44 Kan. L. Rev.
567, 569 (1996) (demonstrating empirical data showing the average number of
law students requesting academic modification to accommodate their disabilities);
M. Kay Runyan & Joseph F. Smith Jr., Identifying and Accommodating Learning
DisabledLaw Students, 41 J. Legal Educ. 317, 320-21 (1991) (comparing various
survey results to support the proposition that "law school administrators are
probably not aware of all the learning disabled students attending their
institutions).
The Individuals with Disabilities Education Act (IDEA),

alone, has resulted in literally millions of students with
disabilities-over 5,775,722 students ages six to twenty one (in
2000-01) receiving a public education in the United States.'68 Of those
students, many are graduating from high school and going on to
attend colleges and graduate programs in law, among other fields.169
Although teaching law students with disabilities may be new
to many law faculty, attending schools with non-disabled peers is not
new for most law students. Most law students today attended
primary and secondary schools with students with disabilities as a
result of IDEA that has mandated mainstreaming for over three
decades. Most law students, therefore, are used to being in classes
with people who may have different abilities, and they likely expect
such diversity within their law school classes. " Accordingly, the
168. In 2006-2007, approximately 6.7 million children and youth, or about

nine percent of all children and youth between the ages of 3-21, received IDEA
services. Table 2.3a. Number, percentage, and percentage distributionof children
ages 3 to 21 served under the individuals with DisabilitiesEducationAct (IDEA),
by racelethnicity: 2006, Nat'l Ctr. for Educ. Stats., U.S. Dep't of Educ. (2006),
http://nces.ed.gov/pubs2008/nativetrends/tables/table 2_3a.asp.
169. According to the U.S. National Center for Education Statistics
11 percent of undergraduates reported having a disability in 2003-2004. Nat'l
Ctr. for Educ. Stats. U.S. Dep't of Educ., Profile of Undergraduates in U.S.
Postsecondary Education Institutions: 2003-04 133 (2006), available at
http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2006184. College enrollment
includes close to half a million students with disabilities. M. Wagner, et al., After
High School: A First Look at the Postschool Experiences of Youth with
Disabilities: A Report from the National Longitudinal Transition Study-2
(NLTS2) 3-1 (2005). However, the rate of people with disabilities attending
postsecondary school is less than half that of their peers in the general
population. Id. See also Bruder & Mogro-Wilson, at 4 (finding that the "lack of
support during postsecondary schooling and the perception that other students
and faculty view disabled students negatively can often contribute to a difficult
college experience").
170. I like to think that the more law students learn about disability and get
to know people with disabilities, the more likely they will reject stereotypes and
traditional ways of thinking about the role of disability in society as solely a
medical problem, thereby becoming more welcoming to clients with disabilities
when they are eventually practicing law. For faculty, however, who may not have
grown up with people with disabilities, and may not know any personally, the
situation is more challenging. Either unknowingly, or based on their own
prejudices, law faculty may relate to students with disabilities differently in a
way that creates barriers to their acceptance as competent law students. See
Bruder & Mogro-Wilson, supra note 169, at 4.
inclusion of students with disabilities in classrooms challenges both

the concept and the constituency of disability."'
2. Disability Is Inclusive
In addition to the prevalence of disability within society
generally and within law schools today, a second reason to teach
about and from a Disability Legal Studies perspective is that
disability itself is inclusive. Disability crosses all lines of race,
ethnicity, gender, sexuality, religion, nationality, and generations.
And like race, gender, and sexuality, it teaches about inclusion,
exclusion, and diversity of the human experience. Despite the
number of people with disabilities in our neighborhoods, workplaces,
and schools, stereotypical ideas and negative views of people with
disabilities remain. Disability continues "to carry a negative social
charge still supported by dominant cultural assumptions across the
economic, political and intellectual spectrum." 112 As a result, on
college campuses and in law school hiring committee meetings,
disability is noticeably absent from diversity discussions. Many
faculty who are very progressive on issues of race, gender, and
sexuality, for example, are resistant to promoting affirmative action
based on disability-even though people with disabilities are grossly
underrepresented in the academy, especially on law school
faculties.' As Lenny Davis has observed, "While race has become in
the past twenty years a more than acceptable modality from which to
theorize in the classroom and in print, as a discourse, a
171. See Ware, supra note 31, at 108.

172. Kudlick, supra note 10, at 108. Kudlick tries to understand why those
who champion the causes of most marginal groups have trouble viewing disabled
people as an oppressed minority. She cites to Mary Johnson, who boils it down to
the false perception that no one is against the handicapped. This means that
"there is no animus against disabled people-even though they are segregated
and kept from full access to society, even though the special programs society
affords them make for a much circumscribed life." See Johnson, supra note 11, at
44. These issues also arise generally in Linda Hamilton Krieger, Introduction, in
Backlash Against the Americans with Disabilities Act 1, 1-25 (Linda Hamilton
Krieger ed., 2003).
173. Although no statistics exist on the number of law faculty with
disabilities, I know of only one Deaf law professor in the US and, anecdotally,
that few law schools have professors with disabilities. The ABA Commission on
Mental and Physical Disability has compiled an annual report on individuals and
lawyers with disabilities, their employment, and the legal profession. See
Disability Statistics Report, supra note 166.
critique,... disability continues to be relegated to hospital hallways,

74
physical therapy tables, and remedial (special) classrooms."'
Further, although most college campuses today value
diversity, disability is often excluded from conversations about
diversity. In diversity training programs for students, for example,
students with disabilities have described to me how they have to
"push their way" into the planning process. Not only is disability not
generally part of diversity discussions, but when disability does come
up, it is often focused on an immediate need to install a ramp or grab
bars in restrooms, not on the importance of including people with
disabilities as a group that faces discrimination on a daily basis.
On some campuses, a shift has taken place, often as a result
of the infusion of Disability Studies into the curriculum. Syracuse
University is such an example.' Syracuse University is one of the
first schools to offer a graduate program in Disability Studies and the
174. Lennard J. Davis, Introduction, in Disability Studies Reader 1, 1-2

(Lennard J. Davis ed., 1st ed. 1997).
175. Syracuse University was one of the first schools to develop a graduate
program in Disability Studies. Last year, Syracuse University also established a
new undergraduate program in Disability Studies. Many other schools now have
disability studies programs. For a listing of these programs, see Disability
Studies Resources, http://disabilitystudies.syr.edu/resources/programsinds.aspx.
In addition to the multidisciplinary Disability Studies program at Syracuse
University, the SU College of Law's Disability Law and Policy Program, which
the author founded and directs, offers a J.D. and M.S. in Education, with a
Certificate in Advanced Study (approved by NYS) in Disability Studies. These two
degrees can be earned within three years, the same amount of time it typically
takes law students to earn a J.D. alone. Law students also may receive the
College of Law Certificate in Disability Law and Policy if they complete a certain
number of disability-related law courses and non-law disability related courses
taught by Disability Studies faculty in other university departments. To date,
over 30 students have graduated with the Joint Degree in Law and Disability
Studies and/or the Certificate in Disability Law and Policy and have secured jobs
in disability law at legal aid/services offices, disability-related federal and state
government offices, private firms (representing parents of students with
disabilities or school districts) and at international disability rights organizations.
In addition to the SU academic programs, the Chancellor convened a Task Force
on Disability in 2004, which the author chairs, in order to bring SU not only into
compliance with disability laws, but to go "beyond compliance" in order to create a
university committed to full inclusion and acceptance of students, faculty and
staff with disabilities. For more information about the Task Force and to request
a copy of its 2007 comprehensive report (Report of the Chancellor's Task Force on
Disability: Realizing the Vision of Inclusion, Access, and Full Participation) that
provides a blueprint on how to assess access and inclusion of disability into a
university's agenda, please contact the author.
first law school to offer a joint degree program in Law and Education,
with a Certificate in Disability Studies. The administration and
faculty are well aware of the fact that without a significant number of
students and faculty with disabilities who are admitted or hired and
supported to participate in the university community, Disability
Studies, as a field of study, will lose its credibility.
3. Disability Informs Us about the Legal System

A third reason to teach from a Disability Legal Studies
perspective is that disability can shed light on the history and values
of our legal system. Although people with disabilities (and their
accomplishments) have remained largely invisible throughout our
history, further research indicates that disability, in fact, has been
"present in penumbra if not in print, on virtually every page of
American history." 6
For example, people with disabilities figure prominently in
popular culture beginning with the freak shows of the 1930s, followed
by the Barnum and Bailey Circus. "' During the Depression, the
League of the Physically Handicapped staged actions in protest of job
discrimination resulting from the medical model of disability that
had begun to shape policy, professional practices, and social
arrangements of the early 20th century. "' In addition, stories of
veterans returning from World War II and the annihilation of people
with disabilities in concentration camps have certainly entered our
collective consciousness in the post-war years. More recently, stories
of soldiers returning from the Vietnam, Iraq, and Afghanistan wars
with post traumatic stress disorder have challenged us to consider
the price of war. Though less well known, there is also the powerful
account of a group of religious objectors to World War II who, after
refusing to serve in the war based on their religious views as
pacifists, were placed as workers in state mental institutions. 19
Horrified by what they saw, these individuals helped to expose the
abuses and atrocities of mental institutions in the 1940s which led,
176. See Longmore & Umansky, supra note 18, at 2.

177. See Bogdan, supra note 37, at vii-x (discussing the historical prevalence
of people with disabilities at "freak shows").
178. Paul K Longmore & David Goldberger, The League of the Physically
Handicapped and the Great Depression: A Case Study in the New Disability
History, 87 J. of Am. Hist., 888, 889-90 (2000).
179. See generally Steven J. Taylor, Acts of Conscience World War II, Mental
Institutions, and Religious Objectors (2009) (detailing this history).
2011) DISABILITY LEGAL STUDIES 457
later, to the politics of deinstitutionalization and to today's scholarly

study of Disability Studies.
More recently, protests by activists in the disability rights
movement provided the backdrop against which President George H.
W. Bush signed one of the country's most comprehensive civil rights
laws, the ADA,' 80 not to mention the role of people with disabilities in
drafting the 2006 United Nations Convention on the Rights of
Persons with Disabilities."18
Disability issues are also prominent in the history of
American jurisprudence in such cases as Buck v. Bell,1 82 in which the
Supreme Court upheld as constitutional forced sterilization; Cleburne
v. Cleburne Living Center,' in which the court upheld the right of a
group home for people with disabilities to open by applying a
stronger version of the rational basis test of the Equal Protection
180. See, e.g., Switzer, supra note 63, at 68-89 (presenting a discussion of
these protests); Susan Gluck Mezey, Disabling interpretations: The Americans
with Disabilities Act in Federal Court 33 (2005) (providing the historical
background of the signing of the ADA).
181. See Arlene S. Kanter, Disability Rights: Convention on the Rights of
Persons with Disabilities, in 2 Encyclopedia of Human Rights 44-49 (David
Forsythe ed., 2009); Kanter, The Globalization of Disability Rights Law, supra
note 71, at 243; Kanter, The Promise and Challenge of the United Nations
Convention on the Rights of Persons with Disabilities,supra note 143, at 288; see
also Comprehensive and integral international convention to promote and protect
the rights and Dignity of Persons with Disabilities, G.A. Res 56/168, U.N. Doc.
A/RES/56/168 (Feb. 26, 2002) (calling for the involvement of relevant non-
governmental organizations in the work of the ad hoc committee originally tasked
with considering proposals for a disability convention); Ad Hoc Committee on a
Comprehensive and Integral International Covention on the Protection and
Promotion of the Rights and Dignity of Persons with Disabilities, U.N. Enable,
http://www.un.org/disabilities/default.asp?id=1423 (last viewed Nov. 22, 2010)
(providing information on the negotiation of the Convention, including the role of
civil society in this process). The optional protocol to the Convention also gives
individuals and groups the right to seek redress for violations of rights under the
Convention directly to the monitoring body, after exhaustion. See Optional
Protocol to the Convention on the Rights of Persons with Disabilities,
U.N. Enable, http://www.un.org/disabilities/default.asp?navid=13&pid=150 (last
viewed Nov. 22, 2010).
182. Buck v. Bell, 274 U.S. 200, 205 (1927) (upholding as constitutional a
Virginia law that allowed sterilization of disabled female inmates at institutions
to promote the "health of the patient and the welfare of society").
183. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985)
(holding as unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment a city's denial of a special use permit for a home for people with
"mental retardation" based on the city's irrational prejudice).
Clause of the Fourteenth Amendment; Youngberg v. Romeo, 184 in

which the court upheld the right to treatment in institutions; and
Atkins v. Virginia,'8 in which the Supreme Court held that the
execution of a man considered "mentally retarded" constituted cruel
and unusual punishment prohibited by the Eighth Amendment. Each
of these are landmark cases not only in the area of disability law, but
in American jurisprudential history as well. Further, the Schiavo
case'8 6 will certainly go down in jurisprudential history as the case
that required an emergency session of Congress after the Supreme
Court rejected an emergency appeal by Terri Schaivo's parents just
18 hours before a life-sustaining feeding tube was to be removed from
their daugher, who was a patient in a Florida hospital."'
In fact, as further evidence of the role of disability in the
public sphere, it is worth noting that the Supreme Court has decided
perhaps more cases under the ADA during the first ten years since
its enactment than most other statutes. Of these disability-related
cases, most address fundamental issues of law beyond the issue of
disability rights, such as the role of the federal government vis-ea-vis
184. Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (ruling that involuntarily
committed residents had a right to treatment).
185. Atkins v. Virginia., 536 U.S. 304, 304 (2002) (holding that imposing the
death penalty on a man considered "mentally retarded" is unconstitutional).
186. Schindler v. Schiavo, 544 U.S. 915 (2005). Terri Schiavo suffered severe
brain damage in 1990 after her heart stopped, depriving her brain of oxygen.
After she lived for 15 years in what some called "a vegetative state," her husband
filed a petition to remove her feeding tube, and Terri's parents opposed the
petition. A seven year-long legal battle ensued. Schiavo's feeding tube was
removed for the first time and then later reinserted as legal decisions were made.
The case involved 14 appeals and numerous motions, petitions, and hearings in
the Florida courts; five suits in federal district court; Florida legislation ("Terri's
Law") struck down by the Supreme Court of Florida; federal legislation (the
"Palm Sunday Compromise"); and four denials of certiorari from the Supreme
Court of the United States. The local court's decision to disconnect Schiavo from
life support was carried out on March 18, 2005, and Schiavo died from effects of
dehydration. Schiavo Timeline, CBC News (March 31, 2005),
http://www.cbc.ca/news/background/schiavol. The ethical issue arising from her
case led to involvement by politicians and advocacy groups; particularly those
involved in the disability rights movement and pro-life movement. See Sheryl Gay
Stolberg, A Coalition of Disparate Forces May Reshape American Law, N.Y.
Times, Apr. 1, 2005, at Al8 (noting the involvement of pro-life and disabilities
rights groups, and the latter's influence in persuading "Democrats like Senator
Tom Harkin of Iowa to take up [Schiavo's] cause.").
187. Supreme Court Rejects Schiavo Appeal, CNN.com (Mar. 18, 2005),
edition.cnn.com/2005/LAW/03/17/schiavo.brain-damaged/; see also Schindler, 544
U.S. at 915 (denying Supreme Court writ of certiorari on March 17, 2005).
the states; the nature and meaning of due process under the
Fourteenth Amendment; and the contours of the rights protected by
the Bill of Rights.' For example, in Board of Trustees of University
of Alabama v. Garrett,'" the Supreme Court held that Title I of the
ADA was unconstitutional insofar as it allowed states to be sued by
private citizens for money damages. In United States v. Georgia,'90
the Supreme Court ruled that Title II of the ADA validly abrogates
States' sovereign immunity in cases involving alleged violations of
the Eighth Amendment. In Tennessee v. Lane,'9' the Supreme Court
held that people with disabilities had been denied their right to
access the courts, a fundamental right protected by the Due Process
clause of the Fourteenth Amendment.
Although the Supreme Court did not adopt explicitly the view
of disability as a social construct in these cases, the Court did
implicitly adopt this view by acknowledging that the barriers to equal
188. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001)
(holding that Title I of the ADA was unconstitutional insofar as it allowed states
to be sued by private citizens for money damages; the holding explicitly does not
apply to suits for injunctive relief); Tennessee v. Lane, 541 U.S. 509, 532-33
(2004) (holding that the ADA protects a person with a disability's right to access
courts and that this is a valid exercise of Congress' enforcement power under the
14th Amendment); United States v. Georgia, 546 U.S. 151, 157-60 (2006) (finding
that Title II of the ADA, which abrogates sovereign immunity of States, is a valid
exercise of the 14th Amendment enforcement power in cases where violations of
the 8th Amendment are alleged); Sutton v. United Air Lines, 527 U.S. 471,
482-83 (1999), superseded by statute, ADA Amendment Act of 2008, P.L. 110-
325, 122 Stat. 3553 (2008) (holding that whether potential disabilities qualify
under the ADA is to be evaluated in light of corrective or mitigating measures
used by the person claiming the disability); Murphy v. United Parcel Service, 527
U.S. 516, 521 (1999), superseded by statute, ADA Amendment Act of 2008
(holding that the determination of whether an impairment "substantially limits"
major life activity under the ADA must be made in light of mitigating
circumstances, including corrective medication); Albertson's v. Kirkinburg, 527
U.S. 555, 567 (1999) (holding that the ADA requires an individualized inquiry to
determine whether an alleged disability substantially impacts a person's major
life activities); Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 185 (2002),
superseded by statute, ADA Amendment Act of 2008 (holding that the
"substantially limited" requirement under the ADA requires plaintiffs claiming to
be disabled to prove that their disability "prevents or severely restricts the
individual from doing activities that are of central importance to most people's
daily lives"); U.S. Airways v. Barnett, 535 U.S. 391, 406 (2002) (holding ADA does
not ordinarily require employers to give persons with disabilities an
accommodation that would violate the rules of a seniority system).
189. Garrett,531 U.S. at 365-68.
190. United States v. Georgia, 546 U.S. at 157-60.
191. Lane, 541 U.S. at 532-33.
treatment in each of these cases was created by society and not only a
result of the person's impairment alone. The Court recognizes, for
example, in Alabama v. Garrett, that it is the responsibility of the
state to protect against employment discrimination of people with
disabilities;'9 2 in United States v. Georgia, that it is the responsibility
of the state to protect the rights of all, including individuals with a
disability, under the Eighth Amendment; 13 and, in Tennessee v.
Lane, that it is the responsibility of the state to ensure access to the
courts for people with disabilities. 194 The individual plaintiffs in these
cases were not required to "overcome" the alleged violations on their
own, as the medical model would dictate; rather, to the extent that
society has established barriers preventing each of these plaintiffs
from realizing their rights, it became the responsibility of society and
ultimately the state to remove such barriers and provide a remedy for
violations of law.
Further, the Supreme Court's 1999 "trilogy" of decisions in
which the Court addressed the definition of disability under the
ADA' 95 is significant not only for scholars of disability law, but also
for scholars of the Supreme Court. These decisions bring into focus
the jurisprudential philosophy of at least some members of the Court,
since in each of these cases, a majority of the Court adhered to a
textualist view of judicial decision making'9 6 by disregarding agency
regulations.'97
192. Garrett,531 U.S. at 374.

193. Georgia, 546 U.S. at 159 (holding that Title II of the ADA is a valid
abrogation of state sovereign immunity where an actual violation of the
Fourteenth Amendment is alleged and citing previous decision holding that the
Eighth Amendment's prohibition of cruel and unusual punishment is
incorporated into the Fourteenth Amendment).
194. Lane, 541 U.S. at 531.
195. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999),
superseded by statute, ADA Amendment Act of 2008, P.L. 110-325, 122 Stat. 3553
(2008); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999),
superseded by statute, ADA Amendment Act of 2008, P.L. 110-325, 122 Stat. 3553
(2008); Albertson's, Inc. v. Kirkinburg, 527 U.S. 555, 565 (1999) (all holding that
the approach adopted by the agency guideines is an impermissible interpretation
of the ADA, as mitigating factors must be taken into account in judging whether
an individual has a disability); see also Toyota Motor Mfg., Ky. v. Williams, 534
U.S. 184, 185 (2002), superseded by statute, ADA Amendment Act of 2008; U.S.
Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (holding that the ADA does not
trump rights of negotiated seniority system).
196. See generally, e.g., Richard A. Posner, Statutory Interpretation-in the
Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983); William N.
Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical
In addition to Supreme Court jurisprudence, other aspects of

our legal system are deeply entwined in disability issues. From the
guardian laws which afford the courts power to decide who is and is
not competent to make decisions about their own lives, to the
insanity defense which involves an inquiry into whether an
individual is culpable or exonerated based on what experts tell the
court about the person's state of mind, to the best interest of the
child, which is used by courts as the standard by which to judge
custody decisions (and, depending on the judge's knowledge about
disability, could result in termination of rights based on a parent's
disability), or to insurance laws which offer different levels of
coverage for treatment of physical or mental impairments-disability
is embedded with social and cultural meanings within our legal
system. As one disability rights advocate has observed,
As advocates, we deal every day with the ways in
which legal power is used against individuals with
disabilities, so the idea that disability bias is
embedded in the structure of law is built into how we
do our jobs. We see how rigid conceptions of
competency are manipulated to deny people with
disabilities control over their property, their living
arrangements, and their bodies. We have learned that
core values of individual autonomy, equality, and due
process are left behind by "treatment" models and
paternalism. We no longer question, though we each
might express the point differently, that the law
proceeds as if there were an identifiable standard of
"ableness" that describes most of us, and justifies
Reasoning, 42 Stan. L. Rev. 321 (1990); Antonin Scalia, A Matter of

Interpretation (1998); Robert J. Gregory, Overcoming Text in an Age of
Textualism: A Practitioner's Guide to Arguing Cases of Statutory Interpretation,
35 Akron L. Rev. 451 (2002) (all discussing various theories of statutory
interpretation).
197. In contrast to the Court's decisions, the U.S. Equal Employment
Opportunity Commission (EEOC) Interpretive Guidance provided that "[tihe
determination of whether an individual is substantially limited in a major life
activity must be made on a case by case basis, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices." 29 CFR app. §
1630.2(j) (1998). Further, as Justices Stevens and Breyer point out in their
dissent in Sutton, "[Elight of the nine Federal Courts of Appeals to address the
issue, and ... all three of the Executive agencies that have issued regulations or
interpretive bulletins construing the statute-[agreed that] . . . the statute defines
"disability" without regard to ameliorative measures. . ." Sutton, 527 U.S. at
495-96 (Stevens, J., dissenting).
different treatment of everyone else, and that such a

standard is myth.1 98
Disability Studies provides a vehicle with which to explore
questions about the rights and responsibilities of citizens and the
general role of the government in promoting and protecting the
welfare of all citizens. Just as discussions of gender and race have
had an impact well beyond women and people of color, so too can
disability force the legal academy to reconsider the economic, social,
political, cultural, religious, legal, philosophical, artistic, moral,
creative and medical aspects of almost everything "we have taken for
granted." 99
C. The Relationship Between Disability and Other Areas of Law

Including a Disability Legal Studies perspective within a law
school setting will not be easy. As a group, law professors are often
resistant to change in the subject and manner in which they teach.
As one (rather cynical) commentator has observed, such resistance
is not surprising, given a number of factors designed
to maintain the status quo in legal education. Very
few law professors were effective educators before
setting foot in the classroom. Nor is it likely that they
had any formal training in education, including
recognizing and accommodating their students'
learning styles. However, they were successful law
students and expect their own students to learn the
same way that they learned in law school: through
competition and rigor. 200
However, this view, too may be changing. If and when
Disability Legal Studies is introduced into law school courses, it can
provide law students with a topic of academic inquiry that can
encompass all aspects of the traditional law school curriculum, and
more.
First, Disability Law can and should be taught
interdisciplinarily. For the past 10 years, I have included in my
disability law course not only graduate students from other fields,
but also readings from other disciplines, including first-person
198. Macurdy, supra note 81, at 444.

199. Kudlick, supra note 10, at 5-6.
200. Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities: Law Students
with Disabilities,NontraditionalLearners, and the Law Teacher as a Learner, 6
Nev. L.J. 116, 123 (2005).
narratives and other writings by people with disabilities, law review

articles, and articles on disability from other disciplines, including
from other countries, as well.
Second, the students in my Disability Law course are
themselves diverse. They include second and third-year law students
who are interested in disability law and came to Syracuse to pursue
our joint degree in Law and Disability Studies or our Certificate in
Disability Law and Policy, as well as students with no prior
experience or particular interest in disability law. The class also
includes non-law graduate students in Disability Studies,
education/special education, sociology, social work, philosophy,
international relations, public administration, and other disciplines.
Together, these students discover-as I also rediscover each
semester-the amazing breadth and scope of disability law. As we
discuss together the meaning and application of the language of the
ADA, or review the law's legislative history and regulations, students
have an opportunity to master legislative research and the rules of
statutory construction. When I send them out to interview a person
with a disability or staff at agencies that work with clients with
disabilities or owners of buildings which may or may not be in
compliance with the ADA (as I do as part of my course each year),
these students learn how to conduct interviews at the same time as
they experience community lawyering. Indeed, talking to "real"
people within our local community and becoming knowledgeable
about the needs of people in our neighborhoods is, in my view, an
important part of my courses and of their legal education. Disability
Legal Studies becomes the tool for such knowledge acquisition.
For example, as we study the concept of disability
discrimination, we delve into the Cleburne 201 case, in which the
Supreme Court struggled to decide whether or not people with
"mental retardation" who have faced a history of discrimination in
the US are entitled to suspect classification under the Equal
Protection Clause of the Fourteenth Amendment. This case brings us
into the complex world of constitutional law (as well as property and
zoning law). As we discuss cases brought under Title I of the ADA, we
explore administrative procedures and the rules of evidence. Indeed,
many Title I cases may have turned on what evidence was or was not
presented to support a claim of discrimination. With ADA cases as
our vehicle, we learn about ethics and civil procedure, since many
201. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).
Title I cases are disposed of at the summary judgment stage. The law
of Torts is also discussed when students inevitably raise concerns
about liability in a case brought under the ADA in which a patient
sued her dentist for refusing to treat her in his office because she was
HIV positive;202 or whether an action for wrongful birth of a baby
with a disability should be permitted to continue.203
The Supreme Court's decision in Atkins,2 04 in which the Court
was asked to decide if a man with a cognitive disability could be
executed, raises important issues not only about the label of "mental
retardation" but also about the purposes of punishment, the equity of
the criminal justice system, international human rights, and death
penalty jurisprudence generally. In U.S. Airways v. Barnett,2 05 the
Supreme Court had to weigh an injured worker's entitlement to
accommodation in the workplace against the seniority rights spelled
out in a collective bargaining agreement that would have resulted in
another worker receiving the position. This case allows us to delve
into issues of labor law, collective bargaining agreements, and
employment law. The Court's decision in Spector v. Norwegian Cruise
206* I h
Line, in which the Court had to decide if the ADA applies to vessels
that fly under foreign flags but board U.S. patrons, raised complex
issues of international law, conflicts of law, and the extraterritorial
application of U.S. law.207 Family law, education law, health law,
insurance law, and even tax law are other topics that are often
introduced in a course on disability law. The list can go on and on.
202. See Bragdon v. Abbott, 524 U.S. 624 (1998).

203. See, e.g., Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill. 1987);
Jones v. Malinowski, 473 A.2d 429 (Md. 1984); Reed v. Campagnolo, 630 A.2d
1145 (Md. 1993); Dehn v. Edgecomb, 865 A.2d 603 (Md. 2005); Schirmer v. Mt.
Auburn Obstetrics & Gynecologic Assocs., 844 N.E.2d 1160 (Ohio 2006) (all
wrongful birth cases); see also Elizabeth Weil, A Wrongful Birth?, N.Y. Times
Magazine, Mar. 12, 2006, at 48 (discussing the debates around wrongful birth
actions); cf Bowen v. Am. Hosp. Ass'n, 476 U.S. 610 (1986); Marzen v. Dep't of
Health and Human Serv., 825 F.2d 1148 (1987) (both addressing the legality of
withholding treatment from infants born with disabilities).
204. Atkins v. Virginia, 536 U.S. 304 (2002).
205. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
206. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005).
207. See generally Arlene S. Kanter, The Presumption Against
Extraterritorialityas Applied to Disability Discrimination Laws: Where Does it
Leave Students with DisabilitiesStudying Abroad?, 14 Stan. J. Legis. & Pol'y 291
(2003) (discussing the extraterritorial application of the ADA with respect to
students studying abroad).
As the field of internet law develops, disability issues are also

at the forefront of this new field of law. For example, in 2006, the
National Federation of the Blind, on behalf of consumers with
disabilities in California, sued Target Corporation alleging that
Target's website was inaccessible because blind people were unable
to access much of the information on it and that they were not able to
purchase anything from the website without assistance. In 2008, the
parties reached a settlement and on August 3, 2009, the judge
awarded attorneys fees declaring that the "plaintiffs have broken
new ground in an important area of law." 208
In addition, disability cases allow us to examine the legal
profession itself. Cases such as Bartlett v. NY Bar Exam,209 in which
the Second Circuit decided whether a NY Bar test-taker was entitled
to accommodations, places the issue of lawyer qualifications front
and center within the classroom. Moreover, few cases seem as
relevant as Bartlett to students who themselves will be taking a bar
within a matter of months after graduation. This case is important
for another reason as well. In the Bartlett case, the plaintiff was an
accomplished student, who had been diagnosed with learning
disabilities.21 0 Many students come to law school today with learning
disabilities, and others are diagnosed for the first time only after they
unsuccessfully attempt to complete their first year in law school.
Through our discussion of Bartlett and other related cases, we have
an opportunity to discuss issues of learning differences in an
environment that is safe and respectful of people with disabilities,
including students with disabilities who may be sitting in our class.
Inevitably, each year, one or two students approach me as we are
discussing these cases to self-identify as having a learning disability
and to thank me for a class in which issues of learning differences are
being discussed out in the open, and in a respectful way. These
208. Memorandum & Order at 10, Nat'l Fed'n of the Blind v. Target Corp.
(No. C 06-01802 MHP) (N.D. Cal. Aug. 3, 2009). The settlement stipulated
changes to the website and related policies, and establishing a $6,000,000
settlement fund to compensate members of the class of consumers who brought
the case. Nat'l Fed'n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N. Cal.
2006) (No. C 06-01802 MHP), available at http://dralegal.org/cases/private
business/nfb_v..target.php. On August 3, 2009, Judge Patel awarded
$3,738,864.96 in attorney's fees and costs to the plaintiffs. Memorandum & Order
at 14.
209. Bartlett v. N.Y. State Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998),
vacated, 527 U.S. 1031 (1999).
210. Bartlett, 156 F.3d at 324.
students are allowed, often for the first time in law school (or their
lives), to realize that there is nothing embarrassing about having a
learning disability or any disability.
1. The First Year Curriculum

Although a cursory review of the law school curriculum
reveals the "centrality" of disability issues, it is noticeably absent, to
date, from course materials and classroom discussions in most
classes, especially in the first year. But as I will illustrate here,
disability is an entirely appropriate topic to introduce together with
the other "traditional" law school classes, even during the first year.
Disability issues arise in torts, contracts, criminal law, property,
constitutional law, criminal law and civil procedure as well.
In Torts, who is a reasonable person and what standard of
care is owed to someone with or without a disability? What is a
Disability Legal Studies perspective in discussions about wrongful
birth which raise the fundamental issue of who is a human being? In
Contracts as well as Criminal Law classes, issues of mental state and
competency arise with respect to who may enter into a binding
contract and who possesses or lacks the mens rea to be found guilty of
a crime.2 1 1 In Property, there are discussions of the Federal Fair
Housing Amendment Act, the Cleburne Court's view of restrictive
covenants and special use permits for group homes for people with
disabilities, as well as modifications required under the ADA for
places of public accommodations and public services and programs.
In Constitutional Law, the Cleburne case2 1 2 is included in
most constitutional law casebooks for its discussion of the levels of
scrutiny required by the Equal Protection Clause of the Fourteenth
Amendment. More recently, a case involving Title II of the ADA,
211. For example, consider the different perspectives that may be brought to
the sentencing of a woman who shoots a man in self defense. The critical legal
scholars may view this scenario as justified by the role of the woman as a member
of a group subordinated and oppressed by the male hegemony. The therapeutic
jurisprudence view, which views the therapeutic outcomes in the law as
necessarily good, may ask how did this happen, and how did the woman not get
the help she needed to avoid this violent act? Finally, a Disability Studies
perspective would examine how the structure of society may have contributed to
the woman being denied services or options based on her status as a woman with
a disability in society.
212. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447-50
(1985).
Alabama v. Garrett 2 13 bears on discussions about sovereign immunity

and the extent to which the state may be liable for damages.
Tennessee v. Lane also is included in discussions in Constitutional
law classes about access to justice.
2. The Upper Level Curriculum and Electives
In the upper class curriculum, disability topics are easily

incorporated into courses such as Family Law, which explores such
issues as the rights of parents with disabilities to maintain custody of
their children or the rights of parents to educate their children, with
and without disabilities; Administrative Law, which discusses the
application of the Administrative Procedures Act to disability
benefits and workers compensation hearings; Employment
Discrimination law with respect to Title I of the ADA which prohibits
employment discrimination against people with disabilities; 214
Federal Tax Law, with respect to the many new tax credits that now
exist for employers providing accommodations for workers with
disabilities; and Estate Tax, with respect to estate planning for
parents with children with disabilities who may never be able to live
entirely independently, and so on.
In courses on Sports Law or Entertainment Law, the syllabus
will likely include PGA v. Martin, in which the Supreme Court held
that it is discrimination not to modify the rules against golf carts so
as to allow a PGA participant who has trouble walking to use a golf
cart during the tournament.2 1 5 In Evidence, disability issues may
arise in all sorts of contexts, including the use of expert testimony in
competency hearings and other contexts, the credibility of testimony
by a person with a cognitive disability, and the admissibility of
certain testimony (for example, testimony provided by facilitated
communication).2 16 Insurance law, bioethics, health law, poverty law,
213. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
214. See generally Ramona L. Paetzold, Why Incorporate Disability Studies
into Teaching DiscriminationLaw, 27 J. of Legal Stud. Educ. 61 (2010) (arguing
that employment discrimination law classes should include a disability studies
perspective).
215. PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001).
216. Facilitated Communication (FC) is a method that allows people who
previously had been non-verbal to communicate by typing, often with assistance.
Although facilitated communication is considered controversial by some, the
author has seen too many individuals communicate effectively with FC to dismiss
it as too controversial. Syracuse University also houses the Facilitated
Communication Institute, which is directed by the Dean of the School of
and election law are also other upper class electives that may include
significant disability related cases and discussions from a Disability
Legal Studies perspective. In addition, courses on philosophy of law
or that focus on issues of justice and the role of lawyers in promoting
justice will find that the theories of Disability Legal Studies provide
meaningful avenues for discussions.2 17
3. Legal Ethics and Professional Responsibility

In professional ethics or professional responsibility courses,
the representation of clients with disabilities should be a required
topic. Some lawyers may equate disability with incompetence and see
disability as the equivalent of an illness or disease. Lawyers need to
learn the difference between a person whom a court found to be
incompetent and a person with a disability since the vast majority of
Education, Dr. Douglas Biklen. For information about facilitated communication,

see the FCI website at http://www.inclusioninstitutes.org/fci' See also State v.
Warden, 891 P.2d 1074, 1088 (Kan. 1995) (holding that evidence proffered by
facilitated communication was admissible at the trial and that "when statements
made using facilitated communication are admitted at trial . . . the credibility of
those statements are issues for the finder of fact, just as with other types of
testimony"); Matter of Luz P., 595 N.Y.S.2d 541, 546 (2d Dep't 1993) (ruling that
testimony given by facilitated communication must be evaluated in each
individual case. To prove her competence to be a witness in her case, Luz P. was
required to pass tests verifying her ability to communicate her own thoughts
through facilitation, without any influence from the facilitator); Storch v.
Syracuse University, 629 N.Y.S.2d 958, 960 (N.Y. Sup. Ct. 1995) (noting that the
Family Court judge had determined that facilitated communication was not
generally accepted as reliable within the relevant scientific community, and
consequently refused to accept testimony elicited by way of facilitated
communication); DSS ex. rel. Jenny S. v. Mark S., 593 N.Y.S.2d 142 (N.Y. Fam.
Ct. 1992) (holding that a child with autism, who was an alleged victim of sexual
abuse, would not be permitted to testify through facilitated communication
because the technique is not generally accepted within the scientific community);
Frank Brieaddy, Autistic TeenagerFinds His Voice, Syracuse Post-Standard (July
31, 2006), at Al, available at http://www.autismconnect.org.uk/news.asp?
itemtype=news&section=000100010001&page=60&id=5841 (describing the case
of one use of facilitated communication by a young autistic man).
217. For discussions of social justice lawyering, see generally Cause Lawyers
and Social Movements (Austin Sarat & Stuart A. Scheingold eds., 2006); Lawyers'
Ethics and the Pursuit of Social Justice: A Critical Reader (Susan D. Carle ed.,
2005); Cause Lawyering: Political Commitments and Professional Responsibilities
(Austin Sarat & Stuart A. Scheingold eds., 1997); Michael Novak, What is Social
Justice?, 21 Cap. U. L. Rev. 877 (1992); see also Sen, supra note 126, at x
("'Justice' is ultimately connected with the way people's lives go, and not merely
with the nature of institutions surrounding them.").
people with disabilities (including people with cognitive disabilities or

mental illness) are fully competent to make decisions for themselves.
Many lawyers throughout their careers will have one or more
clients with a disability, who, due to age or other factors, may be of
questionable competence. Lawyers must learn the rules of their
respective jurisdictions with respect to how to proceed in the
representation of clients whose competency may be questioned. Each
jurisdiction has its own rules on the topic within the general state
professional responsibility rules.2 18 Lawyers must also understand
the difference between a person with a disability for the purpose of
disability rights laws and a person who is considered disabled and
unable to work for the purpose of receiving disability benefits.
Further, the issue of one's disability is relevant to discussions
in professional responsibility courses with respect to the question of
"who is the client." In some cases, where the client has a cognitive
impairment, someone else other than the client, such as the person's
parent, may pay the lawyer's fees. In such cases, to whom does the
lawyer owe her duty of client loyalty? Who is the client? In cases in
which the client is a child seeking educational services under the
Individuals with Disabilities in Education Act (IDEA) and the parent
has a different view from the child regarding the services the child
should receive, does the lawyer advocate for the position of the child
or the parents? What duties are owed by the lawyer to the child and
to the parent or parents in such cases? And what if the parents
disagree among themselves?2 19
Further, lawyers who open their doors to the public are
providing services as a public accommodation and, therefore, are
required not to discriminate against people with disabilities under
Title III of the Americans with Disabilities Act (ADA). Thus lawyers,
like all providers of public accommodations, are required to provide
modifications for clients and visitors with disabilities who come to
218. See Model Rules of Profl Conduct R. 1.14 (2009) (discussing the
obligations of a lawyer when his or her client shows signs of "diminished
capacity").
219. In Winkelman v. Parma City School District, 550 U.S. 516 (2007), the
Supreme Court was asked to decide whether parents have any rights independent
from the rights of their student-children under the Individuals with Disabilities
in Education Act (IDEA). Without deciding the substantive issues in the case
related to the child's educational services, the Court held that the IDEA created a
set of independently enforceable rights in parents. See The Supreme
Court-LeadingCases:ParentalRights, 121 Harv. L. Rev. 365, 367 (2007).
their offices, including physical access, accessible restrooms, and sign

language interpreters for Deaf or hard-of-hearing clients.22 o Likewise,
lawyers who employ 15 or more employees, like all employers of 15 or
more employees, are prohibited from discriminating in the terms,
privileges, and benefits of employment under Title I of the ADA.221
This means that lawyers, just like any other employer covered by the
ADA, may not discriminate against employees who are disabled
during the hiring process, once they are hired, or if they become
disabled in the course of employment. Lawyers also must learn what
types of questions they may or may not ask when interviewing law
students and lawyers for jobs at their offices and what types of
accommodations they must provide to lawyers or other members of
their staff who have disabilities.222 The issue of accommodations for
lawyers with disabilities in the workplace has become so important
nationally that in July 2006, the EEOC issued its first professional-
specific rule on the topic of accommodations in the workplace for
lawyers with disabilities. 223 The existence of this EEOC guidance
supports the view that law students should be made aware of their
rights as lawyers with disabilities under the ADA, as well as their
obligations towards lawyers with disabilities under the ADA.
4. International Law Courses and Programs
A recent trend in the academy, including in many law

schools, is to "internationalize" the curriculum. 224 As a result, many
220. 42 U.S.C. §§ 12181-12189 (2006); 28 C.F.R. §§ 36.101-36.102; 36.104

(2010).
221. 42 U.S.C. § 12112 (West 2005 & Supp. 2010).
222. For more information about employment practices under the ADA, see
JAN: Job Accommodation Network, http://askjan.org (last visited Nov. 11, 2010),
a service of the U.S. Office of Disability Employment Policy of the U.S.
Department of Labor.
223. See Reasonable Accommodations for Attorneys with Disabilities, U.S.
Equal Emp. Opportunity Commission, http://www.eeoc.gov/facts/accommodations-
attorneys.html (last modified July 27, 2006).
224. See generally, e.g., James R. Maxeiner, Learning from Others:
Sustaining the Internationalization and Globalization of U.S. Law School
Curriculums, 32 Fordham Int'l L.J. 32, 33 (noting that, today, "it is no longer a
question of whether U.S. law school curriculums will be internationalized, but
how"); see also David M. Trubek et al., Global Restructuringand the Law: Studies
of the Internationalizationof Legal Fields and the Creation of Transnational
Arenas, 44 Case W. Res. L. Rev. 407, 457 (1994) (discussing internationalization
of the legal field in general). Moreover, a quick Google search of the term
"internationalization of the curriculum" resulted in 146,000 related "hits." A
law schools are now introducing international and global dimensions

into the content of courses and course materials.2 25
Like other areas of law, disability is ripe for
"internationalization." Indeed, one could say that disability law itself
has become globalized.226 Since 1981, when about 400 people with
disabilities, from rich and poor countries, from various educational,
class, racial, ethnic, religious, and linguistic backgrounds met in
Singapore to form Disabled People's International (DPI), the issue of
disability has gained international attention. 227 The turning point in
the globalization of disability law came, however, on December 19,
2001, when the United Nations General Assembly adopted
Resolution 56/168 establishing an Ad Hoc Committee to consider
"proposals for a comprehensive and integral international convention
to promote and protect the rights and dignity of persons with
disabilities . . ."228 This Ad Hoc Committee included representatives of
over 40 countries and over 400 different NGOs and Disabled Peoples'
Organizations (DPOs). 229 Five years later, nearly to the day, on
December 13, 2006, the United Nations General Assembly adopted
by consensus a landmark treaty on the Rights of Persons with
Disabilities and an Optional Protocol. 23 0 The Convention entered into
search of "internationalization of law" resulted in 569,000 "hits," and

"internationalization of legal education" resulted in 64,300 "hits."
225. See, e.g., Toni M. Fine, The Globalization of Legal Education in the
United States, in The Internationalization of the Practice of Law 329 (Jens
Drolshammer & Michael Pfeifer eds., 2003); The Internationalization of Law and
Legal Education (Jan Klabbers & Mortimer Sellers eds., 2008); Simon
Chesterman, The Evolution of Legal Education: Internationalization,
Transnationalization, Globalization, 10 German L.J. 877 (2009); Teresa C.
Stanton, Globalization and the Internationalizationof Legal Education in the
United States: An Annotated Bibliography, 29 Legal Reference Services Q. 23
(2010) (all discussing the internationalization of legal education).
226. See Kanter, supra note 71, at 241-42.
227. See Barnes, Exploring Disability, supra note 56, at 170-71.
228. Comprehensive and Integral International Convention to Promote and
Protect the Rights and Dignity of Persons with Disabilities, G.A. Res. 56/168,
U.N. Doc. A/56/583/Add.2 (Dec. 21, 2001).
229. Kanter, supra note 143, at 289 n.8. Disabled People's Organizations
(DPOs) are organizations that are directed by people with disabilities and in
which a majority of the members are people with disabilities. NGOs are not
governed by people with disabilities.
230. Id. at 287. See also U.N. Enable website, Convention on the Rights of
Persons with Disabilities, supra note 177 (The Optional Protocol gives individuals
and groups the right to seek redress for violations of rights under the Convention
directly to the monitoring body, after exhaustion of domestic remedies).
force on May 3, 2008. As of the writing of this article, 147 countries

have signed the Convention, and 96 countries have ratified it. 231
Both before and since the adoption of the Convention on the
Rights of People with Disabilities by the United Nations in 2006,
numerous countries had embarked on initiatives to draft their own
domestic disability laws.23 2 These domestic disability laws provide a
glimpse into how a country views disability and how people with
disabilities are treated within their respective countries. Disability,
therefore, becomes a topic through which to explore not only
international and comparative law and international relations, but
also, more fundamentally, the meaning of difference and justice for
disadvantaged groups within a given society. In this sense, the
internationalization of disability law within the law school
curriculum provides students with an opportunity to explore the
meaning of equality from various cultural perspectives. Further, it
places our own civil rights tradition within a larger international
human rights context.
Disability also allows us to explore the difference, for
example, between the development of international human rights
jurisprudence and our own U.S. tradition of civil rights. Human
rights may be distinguished from civil rights in that a human right is
a claim each person has, by virtue of being human, to those
conditions and resources that are fundamental to life and dignity.
Human rights encompass an array of political, social, economic and
cultural rights, as recognized by international bodies such as the
United Nations. Moreover, human rights do not need to be
specifically granted, nor can they be taken away; they exist for each
person, regardless of the attitudes or laws that govern a country. By
contrast, civil rights are given to each citizen (or resident) by the
government. They include laws, such as our own Americans with
Disabilities Act, that are designed to implement and enforce human
rights. The ADA is one example of a civil rights law that defines the
means by which people with disabilities may claim their human
rights to equality, inclusion, and participation in society.
Moreover, by exposing students to the different international
and comparative disability law models, we can explore the way in
231. Convention on the Rights of Persons with Disabilities, United Nations

Treaty Collection (Nov. 11, 2010), http://treaties.un.org/pages/ViewDetails.aspx?
src=UNTSONLINE&tabid=2&mtdsg-no=IV-15&chapter=4&lang=en#
Participants (figures may change).
232. See Kanter, supra note 71, at 248-52.
which disability is constructed in various contexts. As we examine,

for example, the application of human rights principles to disability,
we raise the more complex questions of who defines human rights for
whom. An assessment of human rights progress or violations though
the lens of Disability Legal Studies requires, for example, an
examination of the social and cultural construction of disability,
including, primarily, resisting the overpowering medicalization and
pathologization of disability.
Disability Legal Studies, in the context of international law,
allows us the opportunity to view the complex ways that economic
relations, cultural meanings, social practices, and institutional
settings participate in the disablement of persons in different
societies throughout the world. As such, it reveals that the many
barriers that people with disabilities face in various countries of the
world are rooted not in their own limitations, but in the structures
and institutions of their societies. An examination of these issues is
relevant not only to disability rights, but also to an understanding of
the many people and perspectives in the world around us.
5. Clinics and Externships

Disability law is also particularly well-suited for the
development of professional skills and training that is done in clinic
and externship settings. Disability law, infused with a Disability
Legal Studies perspective, challenges students to rethink how the
norm of able-bodiedness and the standard of "the reasonable person"
implicate power, privilege, race, and class in society and often work
to the disadvantage of their clients with disabilities. Not only is the
subject matter of disability a rich topic of exploration in clinical and
externship practices, but disability cases also provide a particularly
good type of legal experience for students. Disability cases expose
students to a range of skills and areas of law practice that few other
subjects do.
For example, disability-related clinic cases may involve large
institutional cases, such as those brought to benefit a class of
homeless disabled people 233 or people with disabilities in
233. See Clark v. Cnty. for Creative Non-Violence, 468 U.S. 289 (1984) (this
case was brought by the author and clinic staff of the Georgetown University Law
Center's Institute of Public Representation).
institutions, 4 as well as smaller, individual cases seeking redress for

employment discrimination, educational services under the IDEA, or
social security disability benefits. In the course of representing
clients in such cases, students gain experience in drafting pleadings,
arguing motions, engaging in negotiations, fact gathering, and
investigation.
Clients with disabilities also present law students with
unique opportunities to challenge their own assumptions, biases, and
fears about people who are different from themselves.23 5 Many of the
students who enroll in a clinic or externship may have never spoken
directly to a person with a disability, even though today, most law
students have attended college, high school, and even grade school
with students with disabilities. Many law students may harbor
assumptions and prejudices about people with disabilities, which are
often based on fear. The late Allan H. Macurdy wrote poignantly
about the fear of people with disabilities:
An observer may be made uncomfortable in the
presence of an individual with a disability not simply
because that person looks "different," but also because
of an aversion to thinking about that person's life as if
it were the observer's own life. In other words,
because the observer wants to avoid thinking about
what to him is a terrible life situation, his fear
requires that he avoid-or not see-individuals with
disabilities. This perception of tragedy, as expressed
in comments such as "I'd rather be dead than live like
that," can be seen as outward manifestations of the
observer's psychological process of fear-avoidance.
Not only is there fear of disability, fueled by
stereotype, but there is also a fear of acknowledging
another's pain, of recognizing someone else's courage,
and of comprehending the injustices others endure as
people of feeling who are marginalized and devalued.
We are afraid of feeling, of needing and care, and of
change because they all require the risk of admitting
our vulnerability, our interdependence, and our need
234. John S., et al v. Cuomo, No. 90-CV-294, 1999 WL 592693 (N.D.N.Y. Jul.
29, 1999) (case was brought by the author, as director of the Syracuse University
Public Interest Law Firm, and Legal Service of Central New York).
235. See Patricia A. Massey & Stephen A. Rosenbaum, Disability Matters:
Toward a Law School Clinical Model for Serving Youth with Special Education
Needs, 11 Clinical L. Rev. 271, 328 (2005) (noting that law school clinics increase
disability awareness among law students).
to reject the presence of emotion in legal decision

making.236
Even the most open-minded students may express fear and
discomfort about interviewing potential clients who are blind or Deaf,
use a wheelchair, or are labeled with a cognitive, neurological, or
psychiatric impairment. The clients of law school clinics provide
students with opportunities to examine their fears and assumptions
about people who may be "different" from themselves because of the
different way they may hear, see, walk, talk, or think.
A colleague at Syracuse University College of Law, Professor
Michael Schwartz, directs the Disability Rights Clinic. He is the only
Deaf law professor in the U.S. and explains that most of his clinic
students have never experienced using a sign language interpreter to
communicate with a Deaf person, not to mention a Deaf professor or
D/deaf clients. But in the course of their clinic experience, the
students learn how to inquire of the D/deaf client what the client
desires as an appropriate accommodation, such as a sign language
interpreter; to request an interpreter in order to speak to the client;
and, to use the interpreter appropriately during meetings by being
sure to speak to, and look at, the client directly, rather than at the
interpreter.237
Similarly, a student representing a client who is blind is
forced to think about his or her assumptions about communicating
with someone who cannot see. For example, if a student is
representing a client in a case alleging discrimination based on the
client's low vision or blindness, how will the student inform the client
of the contents of a confidential letter from the lawyer to the client if
the client cannot see the text? If the client wants to let a friend or
relative read the letter to him, will the student lawyer be able to
explain to the client that once the client reads the letter to someone
else, it is no longer covered by the attorney-client privilege or the
confidential relationship between the lawyer and client? In such
cases, the student learns not only how to communicate with the
client, but also the importance of the lawyer-client relationship and
how to protect it. Such lessons are important for the student in his or
236. Macurdy, supra note 81, at 450-51.

237. Personal communication from Professor Michael Schwartz, Dir.,
Disability Rights Clinic, Syracuse Univ. Coll. of Law (May 2007).
her future dealings with all clients, including those with or without
disabilities.238
The experience of representing clients with disabilities in a
law school clinic also presents opportunities for students to examine
their own stereotypes about people with disabilities as well as
society's assumptions about who is normal and who is not. Indeed,
students often internalize the "unstated norm"239 of the body as vital,
youthful, flawless, and above all, able-bodied. So when law school
clinic students meet a client whose body or abilities do not conform to
that invisible norm, they soon realize (with the help of their
supervising attorney) that few people actually measure up to the
idealized norm, and, perhaps more importantly, that the norm itself
may be socially constructed. As a result of this experience, few
students come away from a clinical experience in which they
represented one or more clients with a disability thinking the same
way about disability, and even society, as they did when they first
entered law school. Clinic students also learn that clients with
disabilities are not a homogeneous group and that each client with a
disability comes with his or her own strengths and weaknesses, likes
and dislikes, fears and competencies, personalities and behaviors.
The experience in a disability clinic or externship also may
foster conversations and collaboration between clinic and externship
students and between clinic students and non-clinic faculty from the
238. A law school clinic in New South Wales has begun to require education
about disability within their law school clinics. The Disability Council of New
South Wales has recommended that law school clinic staff (as well as staff at
legal aid offices) undergo mandatory, skills-based disability awareness training.
This is considered especially important not only for legal staff and students, but
also for administrative staff as well. See Disability Council of N.S.W., Access and
Participationfor People with Disabilities in Contact with the Justice System: A
Question of Justice 13-14 (2003), available at http://www.disabilitycouncil.nsw.
gov.au/archive/03/justice.pdf. The Law Society of England and Wales has
proposed the following statement of the core general characteristics and abilities
that all lawyers should have on day one in practice to "[diemonstrate the capacity
to deal sensitively and effectively with clients, colleagues and others from a range
of social, economic and ethnic backgrounds, identifying and responding positively
and appropriately to issues of culture and disability that might affect
communication." Frances Gibson, Access to Justice for People with Disabilities:
Response of the Clinic 6-7 (La Trobe Law School Legal Studies, Research Paper
No. 2010/3, 2010) (citing The Law Society, Second Consultation on a New
Training Framework for Solicitors, § 4, Tl 46 (Sept. 2003), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1540581).
239. Minow, supra note 7, at 51.
law school and other disciplines as well. For example, in Spring 2009,
clinic students participated in a new course I taught with a professor
from the School of Education on Inclusion in Education. Several
students in this course were also enrolled in the Disability Rights
Clinic and represented clients in special education cases in the course
of the semester. Although we never discussed clinic cases in our
classes (due to the confidential nature of the case information), the
students in the class had an opportunity to learn about special
education law through classroom discussions, and clinic students
were encouraged to pose general questions, in the form of
hypotheticals designed to preserve client confidentiality, related to
issues of law in their cases.
IV. CONCLUSION
Disability Studies has emerged within the academy as a new

multi-disciplinary field. It requires us to consider how society
excludes people with disabilities, not because of their own
limitations, but because of the way in which society itself is
structured and operates. From this viewpoint, it is not as if there are
no differences among people who are Deaf, or blind, or have other
impairments; nor does this view deny the suffering and pain that
people with disabilities experience. Instead, Disability Studies allows
us to explore how to mitigate or even eliminate the social outcomes of
differences with an awareness of the role that power plays in shaping
the development of laws and legal rights.
Disability Legal Studies, then, presents to the law and legal
education both challenges and opportunities. It challenges legal
scholars to critically view the place of disability within the legal
system and the legal academy, as well as society generally. By
viewing law through the lens of Disability Studies, it challenges us to
examine disability, like race, gender, class, and sexuality, as a social
and political construct, derived from a history of stigmatization and
exclusion. It also challenges us to consider the complex ways in which
our system of laws, government, social structures, institutions,
culture, and customs contribute to the disablement of persons in our
own society and in societies throughout the world.
Disability Legal Studies also presents opportunities. As part
of the larger field of Disability Studies, Disability Legal Studies,
provides legal scholars the tools to develop a disability critique of the
law and to explore the role and manifestations of ableism in social
practices and institutions that "portray people with disabilities as
useless, marginal, abnormal, a burden on society, and perhaps most

offensively, as living a life that is not worth living."24 0 It also provides
the context in which to deconstruct and reconstruct the meaning of
disability through investigating the social construction of disability
as well as the power structure that supports and enhances ableism.
Disability Legal Studies, therefore, has much to offer the law
and legal education. It provides theoretical tools as well as advocacy
strategies to challenge our cultural norms that have resulted in the
creation of legal, physical, and attitudinal barriers to inclusion of
people with disabilities in society. As such, it has the potential to
expose us and our students to new areas of academic inquiry. In
addition to questions posed by Disability Studies such as, what does
it mean to be normal? Disability Legal Studies poses further
questions, such as: How does and should the law respond to
differences among us? How can we challenge the privilege afforded to
the able-bodied norm within the legal system? "Who decides the
answers to these questions? And what do the answers reveal?" 241
A first step in responding to these questions is to increase the
visibility of people with disabilities within the academy itself.242 At
240. Mor, supra note 135, at 69.

241. See Kudlick, supra note 10, at 1.
242. In a study on disability in law school, Alan H. Macurdy observed,
The most significant impression left from this study is the
degree of invisibility faced by individuals with disabilities in
the legal system. People with disabilities, if judged by the
casebooks we use to educate young lawyers, play no role, have
no legal interests, engender little substantive law, and need to
be locked away as dangerous or vulnerable. The legal system,
to be sure, reflects the society at large. Invisibility is a
hallmark of the disability experience in America, from retail
settings to restaurant tables to street encounters.
Macurdy,supra note 81, at 449.
And when people with disabilities are seen in the legal literature, they are
generally portrayed "as victims of affliction who must be cured, helped to
overcome their 'deficiencies,' cared for and pitied." These images together "with
rare glimpses of 'extraordinary' people with disabilities who," with supernatural
strength appear successful in sports or other feats,
[leavel most with a false image of America's disabled citizens
and encourages continued oppression. Information on people
with all kinds of disabilities, their cultures, their needs, issues
and concerns must be infused into all areas of university study.
Only then will Americans with disabilities be accorded full
recognition as equals and be included in housing,
transportation, places of public accommodation and recreation,
Syracuse University, we are working to nurture Disability Studies as

a multi-disciplinary field, to increase the number of students, faculty,
and staff with disabilities within our community, and to require the
university to improve access and accommodations, with the goal of
creating a community of inclusion for all. Much work still needs to be
done. But such efforts are well worth it. With such changes, our
universities, as well as society as a whole, will benefit from the
participation of people with disabilities in our classrooms, our
neighborhood, and in our lives.
educational programs and the workforce alongside their non-

disabled peers.
Bryen & Shapiro, supra note 8, para 7.

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 7th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

Imagining disability as ordinary, as the typical rather than the

In the introduction to No Pity: People with DisabilitiesForge

* Laura J. and L. Douglas Meredith Professor of Law, Syracuse University

3. In 1993, the Society for Disability Studies developed the following

academic organizations now have sections devoted to the study of

for Disabilities Studies Programs, http://www.disstudies.org/disability-studies

did before it for other groups. Disability Studies help us to see

II. TOWARDS A DEFINITION OF DISABILITY STUDIES

A. Towards a Definition of What Disability Studies Is

one of the early Disability Studies scholars, describes the field as

Sieglinde A. Shapiro, Disability Studies: What it is and Why it is Needed?,

subjectively; as such, disability is "a political or a moral judgment,

B. Towards a Definition of What Disability Studies Is Not

11. Mary Johnson, Make Them Go Away: Clint Eastwood, Christopher

First, in Disability Studies, the paradigm for viewing

15. Litvak, supra note 8, at 24 (citing a definition of Disability Studies

study, without also seeking to bring forth the voice or viewpoint of

17. Linton, supra note 9, at 134-35.

for this reason that emancipatory research has found a comfortable

20. Michael Oliver coined the phrase "emancipatory disability research" in

people who are quadriplegics reported that they were glad to be

Those who see living with a disability as no life at all include

limited by the social, legal, environmental, and attitudinal barriers

28. Liat Ben-Moshe, "Lame Idea:"DisablingLanguage in the Classroom, in

of history, politics, economics, culture, and civil and human rights.

C. Disability Studies as an Academic Field

29. Irving Kenneth Zola, Introduction, 14 Disability Stud. Q. no. 2, Summer

In addition, the work of many scholars who have investigated

35. Thomas Szasz, The Myth of Mental Illness: Foundations of a Theory of

stigmatization that Goffman describes is also a consequence of social

larger human experience. Even within Disability Studies, there is

1. The Models of Disability

a. Critique of the Medical/Individual Model

individual to change or to be "rehabilitated" or "cured" in order to fit

53. Oliver, supra note 51, at 3.

disability not on the individual (and his or her doctor or treating

b. Minority Group Model of Disability

56. Another approach to disability may be attributed to Wolf Wolfensberger,

disabilities as an oppressed and "disadvantaged" minority group."

58. See Harlan Hahn, Towards a Politics of Disability: Definitions

than two-thirds of working age Americans with disabilities are not

had a household income of $15,000 or less, compared to 10% of those without

Moreover, even since the enactment of the Americans with

the location of disability within the person, rather than in society.7 2

c. Social Model of Disability

the "social model of disability." He concludes with a brief focus on alternative

Instead, it is affirmatively the obligation of society to change or adapt

d. The Cultural Model of Disability

unfair to those children; children with disabilities are excluded

multiple other identities (such as sexuality, race, ethnicity,

84. Mark Sherry, Disability and Diversity: A Sociological Perspective 75

disabilities as inferior, abnormal, and worthless by unpacking the

92. See Shakespeare, supra note 59, at 98 (discussing the theory of