72 Am. U. L. Rev. 1619 (2023).

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Abstract

This Article argues that disability misappropriation is a systemic problem that undermines movement toward disability justice. By disability misappropriation, this Article refers to the tendency of the political right to assert a false concern for disability issues in service of a political agenda that actually harms the disability community. This tactic has influenced the adverse treatment of disabled people in the educational, institutional, and reproductive arenas. From birth to death, it has often had an adverse influence on the lives of disabled people as they receive inadequate and coercive health care, poor education, and limited housing options. While federal law has sometimes sought to provide some legal protection against this coercion, judges have been too willing to accept limitations on those rights in the purported name of protecting disabled people. This Article argues that the disability slogan of “Nothing about us without us” must mean that disability is not appropriated merely out of service to a political agenda that harms the disability community.

* Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, the Ohio State University. Because this essay identifies the importance of disability policy being crafted by disabled people, it seems appropriate to disclose my own disability status. I have several disabilities that provide me with protection under federal law although I would also acknowledge my relatively privileged disability status in that I have had to request few accommodations in my thirty-seven years as a member of a law faculty. Somewhat ironically, though, I wrote the first draft of this article while on paid medical leave. Thus, my employer’s workplace rules affected the scope of my disability status. If I had not been offered paid medical leave, I would have had to return to work earlier and faced more adverse health consequences from an insufficient recuperation period.

I would like to thank American University Washington College of Law for sponsoring this symposium. This Article has benefitted from the research assistance of Moritz law librarian Stephanie Ziegler and Moritz student John Robertson. I also thank Carlos Ball for helpful comments on an early draft, as well as conversations with Jasmine Harris about this article’s thesis.