Disability Law Journal

The coincidence of poverty and disability has been widely acknowledged. The focus has been on the degree to which individuals with mental and physical disabilities face poverty because of their exclusion from the labor market and societal discrimination. There has been less concern, however, with the degree to which disability and illness are distributed in ways that reflect gender, racial, and economic inequalities.

Historically, poverty and disability have been addressed by separate governmental agencies and social assistance programs. With minor exceptions, disability has been addressed through programs structured on a social insurance model while poverty has been dealt with by a means-tested public-assistance model. The nature and mode of assistance provided through both models reinforce a social and economic system in which the ideal citizen is a male engaged in waged work that provides sufficient income for family support and who is without responsibility for caretaking work within the home. Because this ideal neither reflects the lived experience of most families nor addresses the structural causes of poverty or the inequitable distribution of poverty and disability in society, the development of a new ideal or ethic must be promoted.

In this article, the authors examine the nature of the association between poverty and disability with the goal of encouraging more comprehensive forms of social provision that confront the inequitable distribution of illness and disability as well as the economic and social structures that generate these patterns. These measures would benefit individuals who experience disability or impairment but who also confront the forces that maintain widespread poverty.

People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advance warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.

This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention toward ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability and, moreover, are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.

The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce prejudicial attitudes and shift societal norms. However, neither the scholarship nor disability law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with disability is mediated by an affective process that inclines us to like, dislike, be attracted to, or be repulsed by others on the basis of their appearance. The aesthetics literature introduces a significant complication to uncritical reliance on contact as the theoretical and remedial basis for our inclusive ideal. Contact and engagement with the aesthetics of disability may fail to provide the benefits assumed by contact theory, but more perversely, under certain conditions, they may trigger negative affective responses that may stunt the very normative change sought through antidiscrimination law. This Article proposes a novel theoretical lens to more accurately reflect the complexity of the aesthetic–affective process of discriminatory behavior in the context of disability.

People encounter disability in public spaces where accommodations are granted to those who fit into this protected legal class. Nondisabled people desire many of these accommodations—such as the use of reserved parking spots or the ability to avoid waiting in a queue—and perceive them as “special rights” prone to abuse. This apprehension about the exploitation of rights by those pretending to be disabled, which I refer to as “fear of the disability con,” erodes trust in disability law and affects people with disabilities both on an individual level and a group level. Individuals with disabilities are often harassed or questioned about their identity when using their rights. As a group, disabled people are forced to navigate new defensive policies that seek to address widely held perceptions of fakery and abuse. This Article uses a series of survey experiments conducted with multiple nationally representative samples totaling more than 3200 Americans along with forty-seven qualitative in-depth interviews. It brings to light the psychological mechanism of suspicion and identifies factors that motivate fear of the disability con in public spaces. Findings counterintuitively suggest that the scarcity of the desired public resources has no effect on the level of suspicion against potential abusers. Rather, it is the sense of deservingness (or lack thereof) in the eyes of others that drives suspicion. Using these empirical findings, as well as analysis of relevant case law, this Article outlines the normative implications for the design and implementation of laws affecting millions of individuals. Furthermore, this research contributes to our understanding of how rights behave on the ground, both with regard to disability and to myriad distributive policies.

The Americans with Disabilities Act (ADA) is a statute that is largely silent regarding its application on tribal reservations. According to the traditional rules of federal Indian law, Congress must explicitly abrogate tribal sovereignty in order for a statute to be applicable on reservations. However, the Eleventh Circuit has applied the Tuscarora doctrine of the presumption of general applicability, overruling the federal Indian common law rule of explicit abrogation, and found that Title III of the ADA is applicable on tribal reservations. This paper argues that the Tuscarora doctrine is only good law because of the discriminatory backdrop against which native status has been designed and perpetuated. This paper uses two case studies to argue that the forceful application of the ADA on reservations is not the appropriate tool to ensure that tribes protect their members with disabilities. Instead, tribes must be financially empowered to continue to provide culturally appropriate services to this population for the maintenance of tribal self-government.