Debating Disability Disclosure in Legal Education

Abstract

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