In 1954 the Supreme Court decided in Brown v. Board of Education of Topeka Kansas that segregated public schools violated equal protection, helping to trigger officially a second Civil Rights movement. (Brown v. Board of Education of Topeka, Kansas, 1954). Brown began a conversation that has engendered staggering social change, sweeping legal reform, as well as frequent -- and often paroxysmal -- crises of conscience, transforming the way we think and talk about civil rights. The conversation has had many participants as other excluded populations have called for the elimination of other kinds of human oppression. Patriarchy, class domination, and disability prejudice have been exposed and discredited in the language of the Supreme Court's historic decision. Indeed, entire academic disciplines have sprung up to address these significant issues. Disability Studies is one such example, providing us with a rich understanding of the role of disability in our respective societies. It is, however, a field that is substantially disconnected from a generation of civil rights jurisprudence, as well as legal scholarship around rights. Such developments have arisen from novel legal conflicts, the changing nature of our understanding of equality, our growing awareness of the tenacity and complexity of prejudice, and the often rancorous arguments within the legal academy about the role of law as an instrument of human oppression. Using the lens of an examination of Disability Rights, the latest volume of The International Library of Essays on Rights, in this commentary I raise concerns about this growing separation from mainstream legal scholarship out of a profound concern that the two fields will increasingly fail to benefit from the perspective of the other, rendering Disability Studies less effective in the legal arena and legal scholarship less aware of the perspectives of individuals with disabilities that can transform our understanding of equality and human rights.

The contributors to this volume, and much of the field, would likely describe themselves as heirs to the legacy of Brown, yet the Brown decision itself serves as a useful framework to consider the costs of the continuing lack of dialogue with legal scholarship. I preface the discussion with what I perceive to be a fundamental disagreement about the nature of rights. Next I call for a more holistic understanding of disability prejudice -- as well as other forms of discrimination -- that reflects the social, psychological as well as economic aspects of inequality. I then endorse the recommended increase in historical research around disability but caution against the use of a narrow chronological lens or substantive methodology that excludes non-industrialized, pre-modern or non-Western societies. Finally, I close with a discussion of one area of legal scholarship of particular importance to liberation movements; the exchanges between Critical Legal Studies and minority scholarship around rights.

The first point of significant divergence from Brown in Disability Rights is a fundamental disagreement about the nature of rights. In the Foreword, McCrudden asserted that "this volume convey[s] the important idea that approaches to disability rights may be drawn on ... as a source of legal non-discrimination rights." (Blanck, 2005). Beyond its circularity, the idea that rights are drawn from approaches to rights is somewhat troubling. We can generally agree that the body of human rights (whether we call them disability or not) is distinct from legal rights defined as those that are capable of vindication through our legal systems. Thus, disability rights, as a species of human rights, are indeed the source of legal rights to remedy nondiscrimination. Societies create legal rights through organic instruments such as constitutions and through legislation or judicial decisions as a vehicle to implement and enforce human rights. Human rights existed prior to, and independent of any legal authority, and are inherent in being human. That individuals with disabilities have been subject to deprivation of the entire panoply of human rights is amply supported by our history and experience, and thus we must guard against incursions upon our fundamental rights that are not structured around narrow understandings of equality. But if approaches to human rights are sources of legal rights, then rights merely result from a policy debate that brings together various problem-solving techniques. Rights, however, are universal and should transcend intellectual methodologies or political systems.

The idea that rights are the creation of some policy-making process reappears when McCrudden sets out two possible public policy models for "how issues of disability should be addressed" -- a medical model or a civil rights model. The first treats individuals with disabilities as "objects of policy," resulting in economic and social programs important for subsistence but ultimately constraining and segregating people with disabilities. In the second, those with disabilities are treated as "rights-bearing individuals," empowered and integrated into the society. Blanck also notes the "historical shift in disability laws and policies -- from a model of charity, to medical oversight, and then to civil rights." The models are part of the policy-making process, methodologies to address "issues of disability." The implication is that rights themselves are the product of that policymaking. Contributors to Part I extend this perceived dependency of rights upon policy, making it harder to present rights as transcendent, apart from any particular social policy or political regime. Gleason emphasizes that the disability rights movement is, in part, a reaction to social oppression. He fails to recognize that only the movement is a reaction to oppression, not the rights themselves. Disability rights existed prior to their infringement by majorities and the state, and the rights movement arose to combat that infringement. Likewise, Oliver grounds at least the political foundations of disability rights in a socialist social policy. The priority of rights gets lost in the shuffle.

Another point of divergence from the perspective of Brown occurs with the simplification by some contributors of the complex nature of disability prejudice. In Brown the Supreme Court for the first time directly examined the effect of segregation on public school children, on the victims of discrimination. The Court began familiarly enough, framing the question presented as whether "segregation of children in public schools solely on the basis of race deprives the children of the minority group of equal educational opportunities?" (Brown v. Board of Education of Topeka, Kansas, 1954). But strikingly, the Brown decision concluded that the true nature of the harm is internal to the child. Separation from other students of similar age and abilities on the basis of race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (Brown v. Board of Education of Topeka, Kansas, 1954). The harm in the message sent to both black and white members of the society is magnified internally in that "[a] sense of inferiority affects the motivation of a child to learn." (Brown v. Board of Education of Topeka, Kansas, 1954). Largely on the basis of this psychological injury, the Court concluded that separate educational facilities are inherently unequal and thus a violation of equal protection. (Brown v. Board of Education of Topeka, Kansas, 1954, citing Clark, 1950; Witmer and Kotinsky 1952; Deutscher and Chein, 1948; Chein, 1949; Brameld, in MacIver, 1949; Frazier, 1949, Myrdal, 1944)

Brown presents a victim-focused perspective embracing not only the detached, institutional aspects of policy, government and economics, but also the ugliness and visceral immediacy of prejudice. Much harm to the victim is psychological. At the same time, discriminatory actions and motivations on the part of the perpetrator have psychological dimensions themselves. This complexity has been ably demonstrated by Harlan Hahn's path-breaking analysis of the anxieties of those who observe individuals with disabilities, and how those anxieties result in social isolation. His essay in this volume adds to that work, reminding us that although a sociopolitical definition of disability emphasizes stigmatizing attitudes as the source of discrimination, scholars have neglected attitudinal research that is at least comparable to the evidence in Brown. In contrast, Gleason and Oliver in effect see disability prejudice as just another form of economic oppression. But while one of the results of discrimination is certainly income inequality, it does not follow that such discrimination is only economic. Disability prejudice is a pervasive feature of our subconscious, social interactions, political and legal institutions, as well as our economic systems. The inordinate emphasis on the economic aspects of disability discrimination may be a byproduct of the ubiquity of public policy and social work practitioners and theorists in disability studies. Much of their attention is focused upon the creation and maintenance of social welfare programs for individuals with disabilities, programs that themselves can accentuate disability value hierarchy by contributing to the perception that individuals with disabilities cannot hold jobs and support themselves. Because such programs focus on economic assistance, a belief that disability discrimination is caused by economic inequality is understandable, but it is a distortion that warps the trajectory of disability rights.

Blanck, Gleason and Oliver rightly criticize disability studies for failing to recognize the importance of historical research on disability. The historical lens ought to be set wide enough to examine societies beyond industrialized nations and the modern era. The ancient practice of leaving disabled newborns on hillsides to die also was a function of disability prejudice. Oliver in particular calls for research into the historical treatment of individuals with disabilities in socialist systems. While we welcome that research, he may be surprised at the results. For example, it is difficult to imagine that the socialist world described by Aleksandr Solzhenitsyn in the Gulag Archipelago where the state defines dissent as mental deviance would be any less prone to disability prejudice. This reference to mental illness underscores the fact that, apart from Rioux's essay on the equality of well-being, there is little mention in this collection of rights in the context of mental disability. But where a single finding of incompetence entitles the state to near absolute power over an individual's property, relationships, living arrangements and medical decision-making, nowhere is the brutal edge of law more clearly illustrated.

The collection amply demonstrates the rich and fertile results of the interdisciplinary nature of disability studies. It is clear from the writings of the legal practitioners and scholars represented here that they have been positively influenced, indeed energized by insights from other disciplines. What seems to be absent in the work of other disability studies scholars in this collection is a depth of understanding of developments in at least the U. S. legal academy over the last three decades. With the exception of Quinn's insightful analysis of the role of law in oppression, and Asch's use of legal theory, little knowledge is displayed regarding the development of American legal scholarship, even in the area of rights. For example, in the 1970s and 80s a movement known as Critical Legal Studies (CLS) arose, embodying a commitment to the deconstruction of law to reveal its roots in, and service to, class-based oppression. Scholars and activists devoted to feminism and minority rights at first welcomed deconstruction, but chided CLS for not utilizing it to explore law's role in the perpetuation of white supremacy and patriarchy (and we would add disability). The exchange led to the emergence (although elements had been present before) of critical race theory, feminist critical theory and similar intellectual movements that broadened our understanding of law as an instrument of oppression by incorporating issues of race, gender and other forms of difference.

A significant feature of early CLS scholarship was its emphasis on class dominance existing within private law categories such as contracts or property. This stands in marked contrast to most civil rights scholarship -- including this volume -- in which attention is paid primarily to public law including antidiscrimination statutes. This at least leaves the impression that the contributors do not appreciate the role that private law plays in the maintenance of oppression within our societies. When CLS scholars examined rights they concluded that, since individuals rely upon a system in which they believe they will achieve positive results but are ultimately held in their subordinate position, rights themselves are a method of class oppression. Some progressive scholars responded, however, that by undermining rights CLS had in effect silenced the voices of women, racial minorities and other excluded populations who had no other method to effect change and express their aspirations. The debate led to important scholarship that has refined theories of rights both to respond to the CLS critique and minority scholarship. In this collection Asch, reflecting on social justice and personal identity, makes use of insights from critical race theory and feminist theory. But reference to these movements in isolation from the dispute with CLS that, in part, led to their creation, leaves unchallenged the almost reflexive instinct among several contributors to describe disability discrimination in purely economic terms, to fold it within class domination. Researchers and theorists in disability rights need to stake out a position in these debates, and provide their own defense in the context of the disability experience.

What this volume does particularly well is present comparative public law approaches to disability rights, giving us the opportunity to learn from the experiences of other societies to better understand how we might achieve social justice, moving us forward significantly toward a vision of societies where difference is valued. Likewise, the discussion of international developments in disability rights beautifully illustrates the growing international consensus around the fundamental values of human dignity, autonomy, equality and social solidarity. It is all the more puzzling, therefore, that a field so willing to embrace developments outside of US law is apparently unconcerned about legal scholarship around rights that has substantially affected the nature of the discourse here. In the closing essay of the collection, Professor Quinn observes that lawyers are "engaged in the disability rights debate because of a deep-seated faith -- perhaps a naïve faith -- in the possibilities of doing justice through law." While he acknowledges that law "can be an engine of injustice and oppression," he calls us to our more noble aspirations. Rights are too important to be left to the lawyers, but the struggle for rights and their legal protections is a universal one. Legal scholarship cannot be allowed to develop without contributions from the disability experience, while disability scholarship risks increasing marginality unless informed by important controversies about rights. Separation not only leads to inequality in our social institutions, but undermines the legitimacy and relevancy of Disability Studies in both achieving legal solutions and -- as importantly -- transforming our societies to reflect a fervent belief in universal human value.

Author's Note:

I would like to extend a very special thank you to Avi Soifer, Dean of the William S. Richardson School of Law at the University of Hawaii at Manoa for his careful editing, sage advice and gentle humor. Thanks as well to Linda Long-Bellil for the opportunity to comment on this important book.

References

Brown v. Board of Education of Topeka Kansas, 347 U.S. 483 (1954)

Blanck, P.D. (Ed.) (2005). Disability Rights. Aldershot, United Kingdom: Ashgate Publishing.