This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, the marquee civil rights legislation for people with disabilities (about to enter its twenty-fifth year) expresses a national approach to disability that recognizes the role of society in its construction, maintenance, and potential remedy. However, the ADA’s mission is incomplete. It has not generated the types of interactions between people with disabilities and nondisabled people empirically shown to reduce the information problem and deconstruct deeply entrenched social stigma. Prescriptively, procedural design can act as what I call an “antistigma agent” to resist and mitigate disability stigma. This Article focuses on one element of institutional design, public access to adjudication, as a potential tool to construct and disseminate counter-narratives of disability. The unique substantive focus in disability adjudication on questions of agency provides a potential public space for the negotiation of more nuanced definitions of disability, capacity, and competence reflective of the human condition.
Legal scholars have written extensively about the limitations of antidiscrimination laws to respond to social stigma. Disability scholars, in particular, have offered prescriptive proposals for substantive legal reforms in welfare, tort, and health law to respond to such limitations. While advancing important prescriptions for disability law, they do not directly address the tenacity and pervasiveness of disability stigma in the public consciousness, a proven impediment to successful implementation of progressive legislation. I build upon the work of proceduralists focused on advancing utilitarian values and argue that intentional design — informed by social science — offers a significant opportunity to “process disability,” that is, to foster the autonomy and dignity of people with disabilities, and construct and disseminate these counter-narratives in the public arena.
civil rights, Americans with Disabilities Act, ADA, antidiscrimination, disability law, disability rights, disability, administrative law, ugly laws, Title I, Title II, Title III, procedure, civil procedure, courts, proceedings, guardianship, social security, special education, civil commitment
Harris, Jasmine E., "Processing Disability" (2015). Faculty Scholarship at Penn Law. 2399.