Abstract

This paper explores the questions of equality and social justice for people with disabilities in sports and, by extension, other civil societal practices that involve the pursuit of excellence. I argue that such practices come within the purview of justice depending on the interplay between political activism, institutionalized anti-discrimination statutes such as the ADA, and the internal norms of a practice. There are many ways to interpret the ADA, and a successful argument for a right to a pursuit of excellence requires that the ADA be understood as an anticaste principle. That interpretation allows me to show how even voluntary, ostensibly apolitical social practices can stigmatize groups of people — people with disabilities, for example — and how such practices can be refigured to bring about social justice.

Keywords: disability sport, Paralympics, ADA, equal opportunity

I. Introduction

In summer 1999, nine wheelchair users filed a lawsuit against the organizers of the New York City Marathon (NYCM), alleging discrimination that violated the Americans with Disabilities Act (ADA). Wheelchair athletes had been allowed to participate in the NYCM, one of the world's largest marathon races, for 20 years, but not on the same terms with able-bodied runners. The plaintiffs alleged in their complaint that they were routinely but randomly stopped by the police so that elite runners could pass, sometimes for up to 40 minutes; they did not have a competitive wheelchair division; and that there were no prizes, award ceremonies or media exposure for them (Litsky, 1999). The general theme of these practices was that people with disabilities didn't really count as athletes. For example, that they could be stopped implied that improving the times in which they finished the 26.2-mile race wasn't significant, even though it was a goal even the most recreational, 5-hour, able-bodied marathoner could have. Their not having a competitive wheelchair division implied the same, since it lumped together hand-pushed racing wheelchairs and chairs using bicycle gears. The implications were made explicit by the absence of prizes or even finishers' medals for these athletes.

This particular dispute has been settled, more or less happily, and given recent progress in disability sport, might seem like only an ugly reminder of a bygone era. After all, there is evidence to suggest that disability sport has been significantly "mainstreamed" and people with disabilities are recognized as athletes: Since 1988 the Paralympic Games have been held in the same venues as the Olympic Games, and there has been increasing cooperation between the International Paralympic Committee and the International Olympic Committee (see, e.g., International Paralympic Committee, 2005b; DePauw & Gavron, 1995). Golfer Casey Martin's victory in the U.S. Supreme Court in 2001 to use a cart on the PGA Tour also was seen as a major victory for disability sport (Greenhouse, 2001; Abbott, 2001). And, in running, the NYCM had been a bit of an outlier, anyway: most other major marathons in the world had had competitive wheelchair divisions at least since the 1980s.

Things aren't quite so simple. How mainstream disability sport has become remains an open question (Darcy, 2003), and the political and legal victories haven't been forgone conclusions; tenacious opposition persists (see, e.g., the disability-related commentary on overlawyered.com). In general, the NYCM case points to still tricky questions about the participation of people with disabilities in sports and similar social practices. On what terms may people with disabilities participate in competitive sports? What particular sports can they participate in, and why? How can we tell who should be allowed to participate? Ultimately, these issues raise questions about social justice: Are voluntary pursuits of excellence — where distinguishing between better and worse is the whole point — within the scope of social justice? If they are, how do we determine when justice has been done and when an injustice of some kind exists?

The easy — but mistaken — answer is that questions of justice don't even arise in cases like the NYCM challenge. That is because, on such a view, social justice is about the equal distribution of what Alasdair Macintyre (1984) calls external goods, and not about goods internal to a practice: a liberal-democratic state ensures you have a right to pursue a job (external good), but no entitlement to one (internal good); a right to education (external), but not to becoming the valedictorian at your school (internal). Similarly, the view goes, the ADA and other such institutionalized rights at most ensure a person with a disability the right to participate in a pursuit of excellence, but no entitlement to anything that would count as excellence.

The easy answer is mistaken because it confuses participation with meaningful participation. A person's mere presence at a pursuit does not mean she actually participates in it; it depends on what terms she does it. But this does not obviate the bigger questions, just refocuses them: Can there be a right to a meaningful participation in a pursuit of excellence, and on what terms?

The answer is that it depends on the interplay between three factors: the politicization of a practice (someone needs to make a demand), institutionalized principles of justice (e.g., the ADA), and sometimes inchoate, often controversial ideas of what the practices in question are all about. In what follows, I explore the relationship between the factors, focusing on the latter two. First, there are many ways to interpret the spirit of the ADA, and a successful argument for a right to a pursuit of excellence requires that the ADA be understood as an anticaste principle. That interpretation allows me to show how even voluntary, ostensibly apolitical social practices can stigmatize groups of people — people with disabilities, for example — and how such practices can be refigured to bring about social justice.

II. The ADA as an Anticaste Principle

In her 1984 book The Disabled State, Deborah Stone argued that the key to understanding disability politically was to think of the state as attempting to maintain the uneasy boundary between two distributive systems, work and need. At least in the west, the historical thread in disability policies had been to make sure that those "genuinely" unable to work got whatever help they deserved without those able to work receiving perverse incentives not to do so. If we accept Stone's analysis, then the ADA looks truly groundbreaking: Congress explicitly framed the law as a corrective to unjust discrimination against people with disabilities. There is much to be said for reading the ADA as a good-faith piece of civil rights legislation, the kind of legislation that shows the state's commitment, however grudging at times, to the fact that distributive justice isn't only about the just distribution of material goods: it can be about the just distribution of rights, opportunities, capabilities, even recognition and respect. The ADA is premised on the idea that disability policy shouldn't only involve taking care of needs while discouraging shirking; it tries to correct the world so that someone's having a disability does not mean she is entitled to fewer opportunities and respect than non-disabled persons. The ADA enshrines that social value into law and says that the value is important enough for the state to use its coercive apparatus to enforce it.

What that social value is is open to some interpretation. Samuel Bagenstos (2000) has compellingly argued that the injustice in the case of disability is the creation of stigma (Goffman, 1963; Karst, 1989) and that the best interpretation of the ADA is to read it as an institutionalized piece of what Cass Sunstein (1994) calls the "anticaste principle" (See also Francis & Silvers, 2000; Koppelman, 1996). On that view, the state wants to ensure that people with disabilities do not become group who are seen as less worthy than people without disabilities. Insofar as people with disabilities have been treated as less worthy than others, the state must try to eradicate such practices.

To see the implications of this interpretation of the ADA in one set of cases, I turn to sports.

III. Sports, Civil Society, and Justice

Why the focus on sports? In a general way, they reflect society's broader ideas about merit and excellence, fairness and norms. They are profoundly conventional, which is to say, cultural, creations of human agency. A. Bartlett Giamatti (1989) suggests sports — like arts — reflect two of humankind's highest aspirations: self-knowledge of one's freedom, on the one hand, in a community shared by mutual agreement, on the other. We needn't agree with Giamatti's formulation to think sports are indeed an important cultural site in which at least our modern society tries to sort out many of its broader value commitments.

Let us specify these dimensions. First, sport is a social practice in which the idea of achieving something others value as praiseworthy is the whole point. Second, in sports, this praiseworthiness depends on competition: to the extent people do something better than others, they are ranked as more praiseworthy than those others, and whoever is better than everybody merits most praise. This competitive dimension is a constitutive norm; that is, it makes the practice what it is. There are many other social practices which are about the pursuit of excellence, but where competition is not constitutive: arts, for example. Further, in sports the standards of excellence are supposed to be as clear as they come. This isn't quite true: Sure, there are objective measures, but their application depends on what categories are salient, as we will see later.

Finally, sports are a feature of civil society — the constellation of associations and institutions distinct both from the state and from the domestic sphere — and as such almost entirely voluntary. Citizens can choose between different kinds of engagement in sports or simply choose not to engage in them at all.

That practices in civil society are voluntary does not mean that they cannot be within the purview of justice. Civil rights struggles over the last century have convincingly established that questions of justice arise in the civil society. That is, for example, what the ADA's public accommodations clause addresses. But what remains open is the way and extent to which specific practices are to be open to all comers — or what "all comers" actually means. The legitimately discriminatory nature of sports — discriminating between better and worse by internal standards — makes them a particularly good case to puzzle through the relationship between legitimate and illegitimate discrimination. It makes them political and politically interesting.

Modern sports have been an important site for many kinds of politics, but I focus here only on the question of whether sports themselves can become instances of justice and injustice to people with disabilities. In effect, I am asking whether Harlan Hahn's observation on disability and work (1985, 312) can be more than a metaphor. Hahn wrote: "The right of disabled citizens to have an equal chance to compete with the nondisabled in a race rigged against them by factors unrelated to their individual talents may be incompatible with the standards of a democratic society."

So the question is: In an actual race — tournament, game, match — are the standards of success "unrelated to the individual talents" of people with disabilities? The intuitive answer of people sympathetic to disability rights is likely yes, as is my final answer in the paper: "Disability" in one dimension does not preclude talent and excellence in others. But, intuitions notwithstanding, the answer isn't obvious. First, people disagree: commenting on the Achilles Track Club lawsuit against the NYCM, a participant in an online runners' forum wrote in 1999: "I sympathize with the handicapped [sic], but racing isn't something they should try to do." To be sure, the view reflects the very attitudes that help generate the stigma the ADA tries to correct against. But it also, accurately, reflects the view that sports are a pursuit in which difference makes a difference, and in that way, reflects a more general position specifically critical of disability rights: "Even if one concedes a role for government in eliminating private discrimination, one must also acknowledge that discrimination against disabled individuals is different in kind from discrimination by reason of race, national origin, religion, or sex" (O'Quinn, 1991). The theoretical and political challenge for those who think that Hahn's point does apply in sports is to show why and how the difference of a disability isn't the same as comparatively less valuable talent.

To anticipate my conclusion: We can meet the challenge by rethinking about the meaning of excellence in sport. This will show us that the meaning indeed admits different kinds of talents without requiring any fundamental change in the meaning of the excellence. My argument, in other words, isn't about "dumbing down" excellence in sport — a familiar conservative lament about claims of equality since at least the 18^th century (See, e.g., Epstein, 1966; Herzog, 1998) — but simply about showing that disability is perfectly compatible with that excellence.

I bring up the conservative worry about general equality deliberately: The next step of the argument requires we turn to questions of the equality of opportunity.

IV. Equal Opportunity to What?

Let's return to the New York City Marathon and the lawsuit brought by the nine members of the Achilles Track Club, an international organization for wheelchair athletes.

In their defense, the New York Road Runners Club (NYRRC), which conducts the marathon, cited concern for wheelchair users' safety as one of the reasons their progress was often delayed and why they weren't always allowed to start at the official starting line (Litsky, 1999; McKinley, 1999). The plaintiffs considered these arguments both patronizing and disingenuous, and soon enough the NYRRC did begin to make real concessions, which led to a general out-of-court settlement. For the November 1999 marathon, they promised wheelchairs would not be delayed on the course and promised to introduce a special wheelchair division for the year 2000 race and prize money by 2001. (In the non-disabled divisions, the prize money runs in tens of thousands of dollars.)

So although the problem has gone away and although the NYCM was, as I said earlier, a political laggard in the world of distance running, it is useful for our exploration to begin with the philosopher's usual move and call into question something no longer in dispute. Why should wheelchair athletes participate in a footrace in the first place? Wheelchairs have wheels, footraces are events where people run or walk. First, why should wheelchair users get to participate at all and, second, why should they participate in footraces? Let's begin with the second, more specific question: Why footraces? The answer is a pragmatic one, although no less robust for that: Although a wheelchair user can, on the average, move faster than a person on foot (which is why wheelchair athletes usually begin their race a few minutes before runners), the speed is closest to a person on foot. Notably, push-rim wheelchairs are significantly slower than racing bicycles, the other possible reference group. Furthermore, a wheelchair is the most quotidian mode of movement for a person with a mobility disability, just like feet are for able-bodied persons. Part of the appeal of organized running and walking for people who enjoy it is that it is so easy to do; one can, in theory, jump into a footrace just as one is. The more general idea is that disability is not the same as inability. As DePauw and Gavron observe, the recent tendency in disability sport classification has been to focus on functional abilities, not on disability (1995, 11, 120–127; see also Sherrill, 1998, 33–35; International Paralympic Committee, 2005a).

This gets us to the question of why athletes with disabilities should get to participate in an able-bodied persons' race in the first place. Here is a rough first cut for an answer: Wheelchair athletes should get to participate (1) because some wheelchair users can engage in a competition which is in most essentials the same as the competition by people not in wheelchairs, (2) because some of them also want to engage in such competitions, and (3) because our intuitions about the norms of a liberal society say that if someone wants to do something she can do without burdening others, she should get to. That was the logic on which people with disabilities argued for their admittance into footraces in the late 1970s. Things weren't simple then because in the absence of the ADA, there was a gap between the political intuitions and a specific institutionalized principle that would apply. To some extent, the Civil Rights Act of 1964 as well as later disability-specific statutes such as the Architectural Barriers Act or the Rehabilitation Act enacted to help people with disabilities in other contexts afforded enough legal and political analogies for a legitimate case by analogy (see Sunstein, 1993).

In the case of the New York City Marathon, again a visible landmark in these matters, much turned on how (1), the wheelchair users' ability to participate, was interpreted and on whether the ideals of equal opportunity applied in the case. Interest in participation — (2) above — wasn't the issue; that was the very reason the demand was made in the first place. The organizers of the race did not deny that people with disabilities can participate in some athletic activities, but they argued that they could not participate in a footrace aimed primarily at able-bodied runners without seriously endangering everybody. Fred Lebow and James Fixx, the race directors, argued in a hearing in front of the New York Human Rights Commission that the speed of the wheelchairs made them so dangerous to biped runners that they should not be allowed to participate (McCarthy, 1979). The argument didn't fly, however, and by October 1980, the Human Rights Appeal Board issued a final ruling that wheelchair athletes had to be allowed to participate.

Think about the argument more theoretically. In any loosely liberal polity, one central notion of equality of is the idea that opportunities should be equalized. The difficulty is to figure out what it means: People differ in needs, inclinations and talents. Differential needs may mean that equal opportunity requires differential resources: Wheelchair ramps in buildings are a familiar example. Differential inclinations and talents mean that it can be difficult to tell whether someone lacks or has lacked equal opportunities: Maybe my relative poverty is a choice not to pursue the American Dream, or maybe I did pursue it but invested my money badly. In neither case is it obvious that I lacked opportunities comparably equal to others.

For these two reasons — that different needs require different resources and that inequality of achievement does not prove inequality of opportunity — Amartya Sen has argued that the best interpretation of equality is an equal capability to function as a human being (1985, 1992, 1993; see also Martha C. Nussbaum, 1992, 2000). People are equal when they enjoy the capability — whether utilized or not — to pursue the variety of things that society considers full human life. People are unequal when they are denied any such capability, whether as a result of intentional discrimination (explicitly racist, sexist or ableist beliefs, say) or structures that produce a discriminatory effect (people with disabilities systematically lacking access to educational resources, say).

The implications for disability are important. If we think that any human being is prima facie eligible for a full human life, then we have to be attentive, from the word go, to the widely diverse opportunities and abilities among people to reach it. This requires that even severe "natural" physiological limitations be rendered as costless as possible. "Natural" limitations include human- dependent actions such as accidents, but the idea is the same: If my capability is or gets limited, justice demands that the limitation be as costless as possible. The ideal, even if it is not fully realizable, is that nature or accident denies no one the capability to function.

Among the familiar implications of this view is the argument for why the state is not only justified but required to use extra resources for people with disabilities for, say, renovating buildings in order to make them accessible. The logic was also applicable in the context of the wheelchair marathon controversy in the late 1970s. Washington Post columnist Colman McCarthy (1979), for example, argued as follows:

I side with the handicapped. If the wheelchair is what they have been forced to use for transportation, then the wheels of their vehicle are actually their feet and legs. Why should either an accident of birth, or an accident on the highway or a war zone, disbar someone from sharing the roadway with the able during a marathon?

To deny the wheelchair users participation would be to deny them an equal opportunity to participate in a meaningful human activity; that the actual mode of their activity — wheelchairs instead of feet — is different is by itself no argument. They can have recognizably comparable activity even in the very same event. Insofar as there are genuine logistical differences because of the physical aspects of the wheelchairs, providers of the services must try to accommodate them, instead of using the difference as grounds for denying the right to participate. In practice, that has been done, quite successfully, through measures like letting the wheelchairs begin their race a little before the runners or by letting blind athletes use guides.

All this should be familiar and in principle if not in practice uncontroversial. It still makes a difference, however, to what extent we take "reasonable accommodations" now explicitly required by the ADA to imply something like "compensation for misfortunes." Many people have tended to think of them on those terms: like the anonymous commentator in the runners' online forum I quoted above, they "may feel for the handicapped." This can help foster the idea that equalization is somehow equivalent to remedial education, itself an idea laden with a patronizing attitude and so a source of a stigma. When someone is stigmatized, her identity is "spoiled," as Goffman (1963) puts it. This isn't, in the first instance, about the goings-on in her head: the "spoiled identity" is the person's social identity, how others see her. One of the things people don't expect of "defectives" is excellence.

This is why the argument requires our interpreting the ADA as an anticaste principle: On that interpretation, to think that a person cannot or should not hope for an excellence is to stigmatize and so inconsistent with the demands of justice. That is also why the demands of justice are not met when wheelchair athletes just get to wheel through the course of the NYCM: They are, in some way, obviously participating in the event, but they are not participating in what makes the event what it is. They are specifically denied the richer opportunity.

But I have not yet offered an argument for why justice requires that wheelchair users be allowed to participate in this pursuit of excellence, on these particular terms. We also don't know how the argument so far applies to disability sport in general. For example, does the current arrangement for Paralympic Games — same venues as the Olympic Games, different time — satisfy the demands of justice, or violate them? To say that these issues are purely logistical is to sidestep the question: The equality-as-capability model explicitly denies the primacy of logistical considerations.

Despite the legitimately bad rap the notion of "separate but equal" suffers from, it may sometimes be legitimate. That depends on why the separation exists, and that, in turn, on the internal meaning and logic of the practice in question. I now turn to the meaning and logic of competition.

V. Meaningful Competitions