THE DISABILITY FRAME.

AuthorHarris, Jasmine E.

"According to ADA Masks Not Required Anywhere in America!" (1) So read a flyer circulated on Facebook in the summer of 2020, as the global COVID-19 pandemic raged and mask mandates emerged throughout the United States. Compulsory masking violates the Americans with Disabilities Act ("ADA"), the flyer alleged. (2) This message and others like it were quickly debunked, but not before they went viral. (3)

At the same moment and within the same general context, arguments based on disability also appeared in a different valence, as people who favored masking articulated the connection between mask mandates and equal access to public programs and services. These arguments emerged particularly powerfully in the education context, where a lack of universal masking seemed to threaten (1) students whose disability or disabilities prevented them from wearing a mask but who would have benefitted from widespread masking, (2) medically vulnerable students, to whom COVID-19 posed grave health risks, and (3) any medically vulnerable people in students' families or caregiving networks. (4)

These examples illustrate what we call "the disability frame": the characterization of a particular controversy or problem as being "about" disability, which in turn can imply that disability-focused laws ought to resolve or adjudicate the issue. (5) Sometimes, as in the anti-masking flyer, the disability frame is invoked as a shield. The hope is that it will insulate someone from the reach of the state or exempt that person from an unwelcome or onerous responsibility such as a vaccination, (6) jury service, (7) or a criminal sentence. (8) In other instances, as Craig Konnoth has highlighted in his synthetic account of "medical civil rights-seeking," the disability frame functions more like a positive right. (9) It offers access to a benefit or resource, such as housing, accessible transportation, personal assistance, educational services, health care, or income support. (10) In still other instances, the frame functions as the basis for a more systemic or policy-level demand on the state. For example, we have seen the disability frame employed in campaigns to restrict abortion, (11) ban the death penalty, (12) impose public health measures, (13) and preserve and enhance the reach of government-funded healthcare. (14) Last and most darkly, the disability frame has sometimes functioned as a reason to deny people basic rights and freedoms, such as sexual agency. (15)

These diverse examples pull in many directions, but there is a unifying theme: contingency. For those who have invoked the disability frame, that invocation was not mandatory or foreordained. It may have seemed intuitive, perhaps because of practical or conceptual problems with other potential frames, but it was not the only possibility; consciously or not, the framer made a calculation, a choice. This symposium surfaces and interrogates that choice.

Why is the disability frame so broadly available at this moment? The contributions to this symposium and existing legal scholarship suggest at least three reasons. First, although the general public has tended to adopt a narrow view of who counts as "disabled" (only people who appear to have severe and visible physical impairments), (16) the legal definition of disability has long been more capacious and flexible. The nation's best-known disability law, the ADA, includes within its definition of disability those with an actual impairment, those with a record of such an impairment, and those without a limiting impairment who are nevertheless "regarded as" or perceived as having an impairment. (17) In 2008, in response to a line of cases that adopted a narrow interpretation of the ADA's coverage, (18) Congress passed the ADA Amendments Act, which "reinstalled a broad scope of protection to be available under the ADA." (19) To be sure, the legal category of disability remains contested and misunderstood, (20) but it is broad enough to include a substantial portion of the population within its ambit--including, potentially, the millions of Americans who have experienced "long COVID." (21)

Second, as Doron Dorfman notes, the word "disability" is even more capacious than the ADA and other disability-related laws suggest. (22) In the English language, "disability" has signified various types of "inability, disadvantage, and impediment." (23) This linguistic openness, Dorfman contends, has enabled people to stretch the concept of disability well beyond the biomedical realm. (24)

Third, those who might be expected to police the use of the disability frame, such as government civil rights enforcers and people who identify as disabled, have been reluctant or unable to do so, for reasons this symposium explores. To return to our opening anti-masking anecdote, although the Department of Justice issued press releases in response to propaganda misstating the ADA, (25) the pervasiveness of misinformation and its key role in our polarized political ecosystem create difficulties for officials charged with enforcing state and federal disability civil rights laws. (26) Private citizens who know what is, and isn't, a legitimate invocation of disability law face even greater challenges, because of their vulnerability to stigma and abuse. (27) One need only recall the verbal and physical attacks, resulting in hospitalization and even death, that retail workers experienced when they became caught up in the "masking wars." (28)

This symposium is not only about what makes possible the disability frame, but also about its growing appeal in the realms of legal scholarship and legal practice. Consider, for example, Joshua D. Blecher-Cohen's recent Note on the criminalization of people who live with the human immunodeficiency virus (HIV) and the benefit, in that context, of recognizing people with HIV/AIDS as disabled. (29) Invoking the ADA, Blecher-Cohen argues, might provide a pathway to delegitimizing HIV-criminalization statutes, both in court and in the public's eyes. (30) Along similar lines, Kevin Barry and others have argued that fair and equal treatment for transgender people requires that they be included in the ADA's definition of disability. (31) Related to this is a raft of scholarship addressing whether a characterization of pregnancy as disability is (1) legally plausible and (2) normatively desirable. (32)

In recent years, legal scholars have also employed the disability frame to address intractable problems that require fresh thinking. (33) For example, in her article Blackness as Disability?, Kimani Paul-Emile explores "the black racial designation as disabling" and asks whether "the doctrinal framework and normative commitments of disability law" might help "attend to race discrimination and structural inequality." (34) In Accommodating the Female Body, Jessica Roberts borrows from disability studies to show how "the built environment serves as a situs of sex discrimination" and encourages readers to embrace universal design "as a means for both de-abling and de-sexing the workplace." (35) In Carceral Trauma and Disability Law, Benjamin Hattem urges readers to recognize that "mass incarceration leads to mass trauma" and that "[d]sability law provides a promising means to address the psychological harms of incarceration." (36) Still other scholars--sometimes in conversation with advocates and activists--have used the disability frame to tackle issues such as poverty, (37) climate change, (38) and the educational effects of adverse childhood experiences. (39)

Indeed, as Rabia Belt noted in 2021 when reflecting on the thirty-year anniversary of the ADA and the disability-related inequities that the COVID-19 pandemic created and exacerbated, there are many ways that "social inequality produces debility and impairment." (40) Belt explains:

These social inequities include people poisoned by lead; people hurt by police brutality; people harmed by hate crimes; and people surviving sexual violence. They are a crucial reason why the disability community is disproportionately Black and Brown, female, poor, and LGBTQ. (41) It is rare, Belt notes, to see accounts of these injustices that explicitly "spell[] [them] out in disability terms"--but doing so is possible, and may be beneficial. (42)

What we hope to add to this scholarship is an effort to think synthetically and normatively about the disability frame. (43) What does the disability frame offer to those who use it? Is it better or worse than alternative frames? Does using the disability frame carry a price, and if so, who pays it? This symposium considers the possibility that selective deployments of the disability frame may not carry with them, or tend to produce, normative commitments to disability justice. It also grapples with the reality that, when faced with competing interests, decision makers and the broader public have tended to treat disability rights as negotiable, frail, or expendable. (44) Does the use of the broader disability frame help remedy that problem or merely perpetuate it? These inquiries form the basis for this symposium. (45)

***

In what follows we summarize some of the themes of the symposium. But first we acknowledge the event that informed so much of our collective thinking. (46) In doing so, we also pay respect to the movements for disability rights and disability justice, and we memorialize the ways that we tried to bring the rarefied world of the law review symposium into better alignment with the goals of those movements. (47)

The people that anchor a symposium and the process of constructing the event are as important as the animating theme. (48) Our goals in identifying participants were diversity and inclusion. The result was a mix of senior scholars and junior scholars, including junior scholars who do not hold tenure-track "podium" teaching positions. We also aspired to capture a range of backgrounds and experiences, including different...

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