[Whoa!] Kimani Paul-Emile (Fordham) on "Blackness as Disability?"

Kimani Paul-Emile, Blackness as Disability?, 106 Georgetown Law Journal 293 (2018)

Kimani Paul-Emile (Fordham)

Kimani Paul-Emile (Fordham)

An extremely thought-provoking piece, Kimani Paul-Emile (Fordham) explores the question whether negative connotations associated with “blackness” activate federal law prohibiting discrimination against those with disabilities (the ADA)?   Is blackness a disability?

If so, Professor Paul-Emile concludes that “The entire conceptual, practical, normative, and doctrinal apparatus of disability law, on the other hand—from reasonable modifications, balancing of benefits and burdens, and mandated integration—provides a more muscular approach to combating racial inequality and discrimination against black people.”

There is, however, a black nationalist critique of the concept of blackness as disability.  Blackness as disability symbolically chafes those of us who conceive of ‘blackness’ as something other than a creation of white people, who choose blackness as a political identity, who see it as a functional concept designed towards and defined by the dismantling of global white supremacy.  Not only is that conception of Blackness harder to fit within the definition of disability within the ADA, the one that does may unintentionally reproduce the ‘myth of black inferiority’. 

Given the ineffectiveness of other federal civil rights laws to create meaningful change (see recent data on the widening of the racial wealth gap, and other metrics describing racial subordination], and given the limits on progressive coalitions described by Derrick Bell’s “interest convergence” theory, Professor Paul-Emile’s brilliant treatment of race and disability law leaves a bittersweet taste in the mouth of one who she intends to help.  For the good it is designed to produce, it can be interpreted to give to whites the creation of blackness, control over its continuing definition and parameters, as well as the position of savior through legislation and integration.  Similarly, Brown v. Board of Education was premised on the notion that segregation from whites is debilitating to and stigmatizing towards blacks, while segregation from blacks is not debilitating to or stigmatizing towards white children.

Again, this is one of the more thought-provoking pieces of critical race scholarship produced in many years.

Professor Paul-Emile’s states her aim at the outset: 

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

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

She finds the protections in the ADA to be superior to those encompassed in the Civil Rights Act:

“Traditional race jurisprudence focuses on malicious intent and promotes the impractical norm of colorblindness. Disability law, in contrast, does not require a showing of intent and is disability conscious. Indeed, disability law more constructively speaks in the language of reasonable modification and balancing remedial justice against social and economic cost. This legal framework allows for serious engagement with the reality of structural inequality, opening new possibilities for social reform foreclosed by current race jurisprudence, and offers a meaningful legal path to advancing racial equality.”

She begins by identifying the many subordinating hardships endured by black folks and people of color:

 “To be black means to face increased likelihood, relative to Whites, of living in poverty,2 attending failing schools,3 experiencing discrimination in housing,4 being denied a job interview,5 being stopped by the police,6 being killed during a routine police encounter,7 receiving inferior medical care,8 *296 living in substandard conditions and in dangerous and polluted environments,9 being un- or under-employed,10 receiving longer prison sentences,11 and having a lower life expectancy.12 These increased risks are not fully explained by income: blackness in the United States has an independent disabling effect distinct from the effects of socioeconomic status.13”

She discounts the capacity for current civil rights law to combat these issues: 

“Although race law has been relatively effective at countering intentional discrimination, such as Jim Crow, it has failed to combat the predominant forms of discrimination that harm minority populations: unconscious bias, stereotyping, and structural inequality--inequities rooted within social systems and institutions that create inequality in the absence of intentional discrimination.14”

Specifically, she seeks a way around the Court’s insistence on discriminatory intent and its tendency to avoid recognizing disparate racial impacts.  She finds the ADA to be receptive:

“Several statutes, most notably the *297 Americans with Disabilities Act (ADA)18 and the Rehabilitation Act of 1973 (Rehabilitation Act),19 were drafted to remedy discrimination and structural inequality affecting individuals with disabling conditions. These laws do so by targeting stigma and identifying conditions that “substantially limit a major life activity.”20 Moreover, through “reasonable accommodation” and “reasonable modification” mandates, disability laws shift antidiscrimination measures away from zero-sum battles over liability and blame toward balancing efforts to ensure full equality with any burden such efforts may impose.21”

Title II of the ADA reaches all government institutions and entities that receive federal funds.  More importantly:

“Rather than focusing on malicious intent, disability law accepts the impact of even neutral actions, policies, and programs, directly confronting the ways in which social structures, institutions, and norms can “substantially limit[]” a person's ability to perform “one or more of the major life activities.”25 Thus, disability law requires that even discrimination based on unacknowledged bias be addressed.”

She also points out that the ADA forecloses claims of “reverse discrimination”.

As for blackness as a disability, Professor Paul-Emile deals with blackness like so:

“I use the term “blackness” in this Article to capture the various combinations of particular physical, cultural, and linguistic features that Americans have been socialized to recognize and correlate with people racially designated in the United States as black. Blackness, of course, is not by itself an impairment. However, disability law recognizes that many traits understood as disabling do not necessarily arise from a medical condition, but instead are simply traits that create disadvantage when combined with an inhospitable social or physical environment.29”

While this definition places ‘blackness’ more squarely within the definition of disability, it also places a heavy emphasis on phenotype and culture—as understood and actioned upon by racist whites. Blackness as understood by black folks, as something to be proud of, is necessarily made irrelevant—for our own good.  Conundrum.

Still, there is no denying the link between the dominant social conception of race and races, and how it fits within the ‘social model of disability’: 

“society is not neutral and that biases are built into its very structures, norms, and practices, which can then produce disability.”

Like race, disability is a social construction:

“For instance, it allows us to see how some disabilities are quite literally manifestations of socio-cultural forces, as is the case with anorexia nervosa.30 It also illuminates the temporality of some conditions or traits understood as disabilities. Thus, a child now diagnosed with attention deficit disorder may have been characterized as hyperactive or unfocused a century ago.31 The social model also demonstrates that whether a trait operates as a disability may depend on one's objectives. For example, if one's aim is to excel at reading, then dyslexia functions as a disability. Yet if one's goal is to excel at causal perception--an ability necessary for success in many professions--then having dyslexia may be beneficial.32”

Thus:

“Applying disability law's doctrinal framework and normative commitments to the problem of racial inequality forces us to see how blackness operates as a disabling condition, creates opportunities to rethink the discrimination and structural inequities that disable, and provides powerful tools to challenge them.35”

She acknowledges that some will find ‘blackness as disability’ as troubling.  But she is more concerned with whites who fret the expansion of civil rights laws more so than blacks who might find the conception of blackness as disability to be itself disabling.  For example, committing to the white gaze of blackness could be construed to make dark skin blacks “blacker” than light skinned blacks because studies show whites are less comfortable around the ‘highly-melaninated.’  It accepts and perpetuates white/dominant definitions of black culture and linguistics.

Professor Paul-Emile probably thinks I am using an outdated perception of the word “disabled”:

“Disability also does not necessarily mean that an individual cannot function and contribute fully to society. Just as Judge David S. Tatel, who is blind, can serve a distinguished career as a judge on the D.C. Circuit Court of Appeals,40 and David Boies, who has dyslexia,41 can be recognized as one of the most esteemed litigators of our time, for many individuals to have a disability simply means that such individuals have a particular barrier to reaching their full potential in society as it is currently structured….  When we stop thinking about disability in a pejorative, stigmatized way and acknowledge the reality and effect of structural race-based inequality, the relationship between blackness and disability becomes clear.”

Professor Paul-Emile concedes that the idea of blackness as disability “is more conceptual than doctrinal”.  I add here simply that as a concept, blackness as disability also requires and examination of what it signal and symbolizes.  – DreSmith