On the Relationship Between Race and Disability

For decades, legal scholars have examined the similarities between race and disability, and in particular, the similarities between the forms of social subordination, marginalization, and exclusion experienced by either racial minorities or people with disabilities. This Article builds on this existing scholarship to articulate and defend an intersectional approach to analyzing race and disability in jurisprudence, legal scholarship, and legal advocacy. In this Article, I build on the existing literature in three ways. First, building on the work of Critical Race theorists and Disability Studies scholars who have defined race and disability as social constructions, I document how, from the Founding Era to the early twentieth century, social meanings of race were influenced by social meanings of disability, and vice versa. Second, I argue that examining this co-constitutive relationship between race and disability illuminates how racist and ableist ideologies collided throughout the twentieth century, to produce, reinforce, and maintain the social marginalization and subordination of individuals who were both disabled and negatively racialized. Third, and finally, this Article demonstrates how an intersectional analysis provides not only a method for examining the relationship between race and disability, but also a historical lens through which to analyze constitutional protections and remedies. In particular, this intersectional approach can provide a historical lens for analyzing and strengthening judicial review of disability classifications under City of Cleburne v. Cleburne Living Center, Inc., Congress' section 5 powers, and disability discrimination claims under the Americans with Disabilities Act. Ultimately, the Article concludes with suggestions for how legal advocates can better frame legal injuries and identify legal remedies that are more attentive to the structural dimensions of racism and ableism.