The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities

In response to Alexander Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201 (2015)

Debating Disability Disclosure in Legal Education

More than three decades after President George H.W. Bush signed the Americans with Disabilities Act into law, disability identity remains contested and continues to be conflated with medical diagnoses by both law and society. Dichotomies endure—disabled/nondisabled; physical/mental disability; visible/invisible; disclosure/nondisclosure; individual/institutional—and, as a result, undermine the exercise of rights and claims to disability identity. One particularly problematic binary at the core of the others is the line drawn between ‘visible’ and ‘invisible disabilities.’ This distinction, however, is much less pronounced in society than it seems. It is much more a product of existing information deficits about disability that limit public perceptions to those with a set of normative (often visible) physical and behavioral markers of disability, what I have previously dubbed “the aesthetics of disability. In fact, while disability continues to be associated with the quintessential symbol of the wheelchair, the majority of people with disabilities in the United States have less apparent disabilities and do not fit the stereotypical emblems of disability—assistive mobility devices such as white canes and wheelchairs. For these individuals, the question of publicly claiming disability as part of their identity is ever-present. That is, unlike those who manifest the aesthetics of disability and forfeit the decision to disclose or not, those without apparent markers have a choice to publicly identify as a disabled person, pass as nondisabled (hiding disability/actively performing nondisabled appearances and behaviors), or “cover” (downplaying disability to blend into mainstream society).A healthy literature exists on the disclosure of a non-apparent disfavored trait in law and sexuality (LGBTQ identity) and immigration law (immigration status), but no similar deep debates on disclosure exist with respect to disability identity in legal scholarship. My prior work seeks to frame and contribute to these discussions in other areas of law and society, including employment, public services and programs, places of public accommodations, intimate relationships, and family law.This Article builds on my broader treatment of this topic and argues that existing debates about disability identity—specifically in legal education—miss three critical points of nuance. First, discussions about the stakes of disclosure of disability identity focus almost entirely on individual rights and privacy with little attention to the relationship between disability disclosure and continued efforts to change social norms of disability or the collective benefits of disclosure. Second, conversations about disability in legal education presume that both law students and professors are nondisabled. This baseline shapes the design (and accessibility) of legal education. The pervasiveness of disability in the national population (1 in 5 adults) relative to the poor representation of disability among law students and lawyers should raise red flags about barriers to accessing legal education, and, consequently, the legal profession. The National Association for Legal Career Professionals (NALP) 2019 Report on Diversity in Law Firms revealed that fewer than 0.46% of all law firm partners and 0.59% of law firm associates surveyed identified as a person with a disability. Even if that number is underinclusive because it relies on self-disclosure, the percentage of people with disabilities in law firms is abysmal and disproportionate to the incidence of disability in society. Third, disclosure is not an on/off switch, but rather a complex and continuing set of decisions complicated by existing social norms, stigma, and, at times, the intersections of multiple marginalized identities. Any debate about the value of privacy and disclosure to disability rights must address these assumptions.This Article unfolds in three parts. Part I maps representative arguments in the disclosure debate. Part II advances the central argument in the article, that the current debate misses three key considerations. Part III then zooms out to reflect on the insights in Part II and the normative implications for supporting meaningful inclusion in legal education and the legal profession.Negotiating disability identity in legal education matters can have short- and long-term consequences. Decisions to disclose shape the experiences students with and without disabilities have in law school, their chances of graduating, job prospects, peer acceptance, and wellbeing in the profession. These decisions affect who gets handpicked by law professors to mold and shape into future judges, political leaders, and, importantly, law faculty. Neither this article nor my prior work fails to recognize the potential risks and costs facing students and faculty with less apparent disabilities in legal education. This Article adopts an agnostic position in this debate relative to my other work. The goal here is not to persuade the reader that privacy or disclosure is superior to its alternatives in legal education; rather, the goal is to surface and contest the failure to account for these key elements in the discussion. Finally, this project is also epistemological in that it helps to capture recent efforts to address disability rights in legal education and the profession

Reckoning with Race and Disability

Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars approach the analysis of race and disability principally as a matter of comparative subordination (race and disability; race as disability; disability as race). More recent scholarship, however, incorporates critical race and intersectionality to identify connections and center those most marginalized within racial justice and disability rights movements. This body of emerging legal scholarship creates fruitful points of entry, but still situates disability as an analytical tool for understanding racial subordination without due attention to disability’s co-constitutive function and its remedial lessons. This Essay argues that aesthetic theories of disability discrimination offer a comprehensive, unifying lens to understand the roots of both race and disability discrimination, the nature of the harms experienced by those with intersectional identities, and, perhaps most useful, the construction of remedies that can meaningfully address the endemic aesthetic origins of inequality. First, an aesthetics lens shows how deeply rooted biases mark people of color with and without disabilities as deviant, incompetent, and unequal. These biases trigger affective responses that, at first blush, appear to be biological and visceral when, in fact, they are products of centuries of structural subordination. Second, aesthetics help explain why norms of race and disability together are especially resistant to change. Third, aesthetic theories surface a misplaced faith in the quintessential socio-legal prescription for inequality: training and education. While such interventions may be necessary, this Essay cautions against their remedial sufficiency and calls for training and education designed with due attention to the lessons of aesthetics

Taking Disability Public

Anti-discrimination laws enforce the idea that no one should be forced or encouraged to hide their race, gender, sexuality or other characteristics of their identity. So why is disability rights law the glaring exception? Other areas of anti-discrimination law have eschewed forms of enforced privacy about protected classes and, as a result, re-frame privacy norms as problematic, antigenic, and, at times, counter to structural reform goals. In contrast, disability rights law values privacy norms to preempt discrimination; in other words, if you never reveal the information, no one can discriminate against you because of that information. This Article argues that this is a mistake, and that to truly discard stigma and false notions of disability as synonymous with incapacity, we need to fundamentally challenge and re-conceive of how privacy applies to disability identity, legal status, the law’s remedial role and, in some settings, redesign legal interventions to incentivize publicity values

Cultural Collisions and the Limits of the Affordable Care Act

National Federation of Independent Business v. Sebelius (“NFIB”) settled the central constitutional questions impeding the rollout of the Patient Protection and Affordable Care Act (“ACA”): whether the federal government’s “individual mandate” to purchase or hold health insurance and the federal government’s authority to retract existing federal dollars if states fail to expand Medicaid eligibility violate the Constitution. However, a number of residual questions persist in its wake. While most of the focus this year has been on related constitutional issues — such as religious exemptions from offering contraceptive coverage to employees — NFIB also clears the path for a discussion of the merits of the ACA’s policy goals and the extent to which the ACA succeeds on its own terms. This Article explores the normative implications of the ACA’s equal access/mental health agenda with respect to culturally and linguistically diverse communities. While the ACA will certainly extend insurance coverage to additional health care market participants, it falls short of ensuring meaningful access to health care — i.e., changes in health status — because it does not reach or, at best, narrowly addresses the ways in which health care (and mental health care in particular) has been historically defined, delivered, regulated, and experienced in the United States

Processing Disability

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

Processing Disability

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

Sexual Consent and Disability

Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault laws and social norms looked quite different than those of today. Current scholarly discussions about sexual consent and mental disability suffer from an outdated empirical baseline that masks critical information about the profile and experience of sexual violence. This Article creates a new empirical baseline for modern scholarship on sexual assault and disability. Based on an original survey of all fifty states and jurisprudence from the past twenty years of state sexual assault and rape appeals where the victim has a mental disability, this Article updates and critiques four major claims about sexual consent and disability in the current literature. First, through a review of statutes across the country, it complicates the traditional notion that statutes are unduly vague in their definition of disability, and as a result, either over- or under-emphasize disability. The author advances a new organizing taxonomy for sexual assault statutes addressing consent for people with mental disabilities. Second, this dataset upends the prevailing claim by legal scholars that courts overemphasize standardized evidence such as intelligence quotient (IQ) or mental age when judging a person’s functional capacity to consent to sex. Instead, this Article shows that courts frequently look at adaptive abilities to augment standardized evidence but, in doing so, overvalue certain kinds of adaptive evidence that have low probative value, to the detriment of persons with mental disabilities. Third, legislators and legal scholars focus on people in large institutional settings in their critiques of overregulation, but this new data shows that people in community-based settings are more often the complainants in rape and sexual assault cases. This raises important questions about the types of relationships the state regulates (formal versus informal care relationships), the location of these relationships (community versus institutional settings), and issues of class that intersect with disability and sexual regulation. By not addressing the right issues and contexts, current law leaves people with mental disabilities simultaneously more susceptible to sexual violence and less empowered to exercise sexual agency. Finally, the Article more deeply examines the traditional assumption that people with disabilities rarely have access to testify by considering a rarely-mentioned risk: whether testimony by people with disabilities skews capacity determinations because fact finders cannot see beyond the existence of the disability—a phenomenon which the author terms “the aesthetics of disability.” This Article calls upon scholars, courts, and policymakers to consider difficult questions of regulating sexual consent in ways that are consistent with the current profile and experience of sexual violence for people with mental disabilities reflected in this study