SMU Law Review Forum

Disability Rights and the Discourse of Justice

Samuel R. Bagenstos, University of Michigan Law SchoolFollow

Abstract

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social-change” story, asserts that the ADA was essentially adopted too soon—that the legislative coalition came together to pass the law before society as a whole was ready for it, leading to a backlash. There is something to be said for both stories. But the most important point is what connects them. The ADA was a bipartisan achievement largely because the efforts to pass the statute—in a brilliant tactical move—skirted difficult arguments about justice. Instead, they relied explicitly on a discourse of costs and benefits—and they relied implicitly on a discourse of charity and pity. But as soon as the ADA was adopted and the burdens imposed by it became apparent, the cost-benefit and charity/pity discourses reached their limit in providing support for the statute. To secure support for disability rights in the future, advocates will need to rely on a discourse of justice. And that will require renewed efforts at social, and not just legal, change.