Reckoning with Race and Disability

abstract. 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.

Introduction

Reginald Latson, known as “Neli,” sat in the grass in front of his local public library in Stafford County, Virginia, waiting for the building to open. While he waited, a “concerned citizen” called the local police department about a suspicious person with a “hoodie” perhaps “with a gun” who was “loitering outside the library.”1 Latson, an unarmed eighteen-year-old, had done nothing illegal.2 When the police officer arrived and ask him his name, he did not answer. Instead, believing he was in danger, Latson “responded with a ‘fight or flight’ reaction.”3 The officer arrested Latson and the Commonwealth of Virginia charged him with felony assault on a law-enforcement officer, for which he received a sentence of more than ten years in prison.4

The prosecutor gave short shrift to claims that the charges and noncompliant behaviors documented by the officer were manifestations of Latson’s autism, preferring to frame disability as a “convenience.”5 In Virginia, Stamper v. Commonwealth precluded Latson’s lawyer from presenting evidence of Latson’s disabilities—lay or expert testimony, documentary testimony, all prohibited—to contextualize the facts presented at Latson’s bail hearing and criminal trial.6 Furthermore, while detained, the corrections officers also declined to acknowledge Latson’s disabilities and denied him necessary accommodations.7 Officers subjected Latson to prolonged restraints and seclusion; for example, he spent 182 out of a total of 243 days (approximately eight months) in solitary confinement for up to twenty-four hours per day.8

Neli Latson is a Black, autistic man.9 How do we make sense of the role of race10and disability11 in the discrimination experienced by Neli? This Essay argues that current comparative and intersectional lenses offer an incomplete picture of the nature of the harm and how best address it. While intersectionality12 certainly captures Neli Latson’s experience by shifting the focal point of analysis to the cross-sections of race and disability (Neli’s experience as a Black, autistic man),13 it does less work as a diagnostic and prescriptive lens. In other words, intersectionality tells us to focus on all identities and how they come together to form a distinct, new type of experience of discrimination. But it does not, in the case of race and disability, tell us about the source of intersectional marginalization or the tension between identity labels in communities of color—all necessary insights to help design more accurate legal remedies.

Aesthetic theories of discrimination, this Essay contends, can supplement the vagaries surrounding intersectionality as an analytical lens to understand race and disability.14 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 the product 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 training and education as a prescription for inequality, particularly in the context of the criminal-justice system.

This Essay proceeds in three parts. Part I offers a descriptive account of the existing legal scholarship15 on race and disability. Part II then uses the opening example of Neli Latson to explain what is missing from the current scholarship. Part III argues that aesthetic and affective theories of discrimination offer a unifying lens that further develops the meaning of intersectionality in the context of race and disability. I then apply an aesthetic lens to Neli Latson’s case to begin to build a broader remedial framework for intersectional discrimination.16 I conclude with a few questions to consider as legal scholars continue to cultivate critical disability frameworks in law.

I. survey of legal scholarship on race and disability

In 2010, Beth Ribet reviewed existing scholarship on race and disability.17 She argued that disability scholarship required greater theorizing about intersectionality and association with critical race studies (CRS) and that “[r]elatively few” CRS scholars have incorporated disability into their scholarship.18 Part I primarily builds upon Ribet’s discussion of scholarship. It picks up where her analysis left off to capture more recent scholarly conversations that respond to the past decade’s transformative movements.19

A. Comparative Subordination

Comparative subordination scholarship notably treats disability and race as distinct categories. Ribet describes “comparative subordination” as scholarship that primarily “relies on analogy and application of racially based analysis to disability, interchanging disability as a category of oppression with race as a category of oppression.”20 Adrienne Asch, according to Ribet, falls into this category because she “treats race and disability as relatively discrete categories, focusing on how the two compare, and in some moments degenerating into a debate about which oppression or experience is harder or worse.”21 The identifying feature of this category, irrespective of the identity gate one enters, is the treatment of disability and race as separate categories.

Many foundational disability law-review articles adopted a comparative approach to race and disability, in part, because that was where the law was developing. For example, disability legal scholars like Ruth Colker and Sam Bagenstos have argued, a shift from individual conceptions of discrimination to a structural subordination approach allows for greater theorizing across categories and possibilities for coalition-building.22 In the 1990s and early 2000s, this position in legal scholarship tracked the goals of the disability-rights movement seeking to develop a broader socio-political disability identity.23 In fact, narratives of “sameness” among neatly packaged, protected classes may have helped move the Americans with Disabilities Act through Congress from bill to law.24

Since 2010, legal scholars within disability law and equality law more broadly have further developed the comparative model. The legal scholarship largely falls into three subcategories under the comparative type:25 (1) Disability and Race; (2) Disability as Race; and (3) Race as Disability. I describe and offer an example of work in each category below.

1. Disability and Race

The scholarship in this category is largely consistent in form and focus as described previously; it compares race and disability discrimination in service of situating disability within the broader civil-rights paradigm and offering insights about the disability “perspective” in the race context or vice versa. Mark Weber, for example, pinpoints critical comparisons and points of departure among disability, race, and sex discrimination laws.26 For instance, Weber describes that while animus drives discrimination in the race (and sex) context, animus does less work in the disability space. Attitudes about disability may be driven by a different emotion entirely such as by pity or benevolence. Therefore, disability law may require different designs than race and other areas of antidiscrimination law.27

Disability activists framed disability rights as an extension of the Civil Rights Act. They drew power, broad-based support, and issue legitimacy from cross-movement analogies. However, there were some civil-rights leaders who, cognizant of the discursive use of disability language as a tool of subordination to disenfranchise Black people, rejected associations with disability and sought distance from an emerging disability-rights movement.28 Historical references to race in disability emphasize the role of the Black Panthers in the San Francisco 504 sit-ins in 1977—a formative moment in the disability-rights movement’s history.29 For more than three weeks, people with disabilities occupied the offices of the Department of Health Education and Welfare (HEW) to protest HEW Secretary Joseph Califano’s delay in issuing regulations to enforce section 504 of the Rehabilitation Act of 1973, which prohibited recipients of federal dollars from discriminating on the basis of disability.30 Blind Black activist Donald Galloway worked at the Center for Independent Living in the early 1970s. He described the support Black leaders gave to disability-rights activists, particularly in the San Francisco Bay area. This included support from the Black Panther Party.31

2. Disability as Race32

Craig Konnoth advances an interesting descriptive and normative claim in his recent work.33 He describes a shift from social constructivism at the heart of civil rights to a proliferation of what he calls “medical civil rights,”34 or legal rights (and entitlements) that flow from one’s individual medical status.35 Whereas disability and race scholars tend to reject (with good reason) medical diagnostic-driven approaches to rights given the troubled history of medicine as a means of pathologizing difference, Konnoth argues that this coercion is no different from the highly assimilationist antidiscrimination frameworks operating right now.36 He encourages us to embrace rather than shun medicalization because “problems framed as medical are relatively insulated from political tides,” problems such as poverty, food insecurity, lack of access to health insurance or care, or homelessness (issues that disproportionately affect people of color).37 In other words, framing racial-justice issues in medical terms (around specific diagnoses) offers, on balance, according to Konnoth, a fruitful direction for an already problematic body of civil-rights law.

3. Race as Disability

Kimani Paul-Emile has framed race as disability to draw on the remedial benefits of disability antidiscrimination law to mitigate racial injustice.38 More specifically, Paul-Emile focuses her attention on Title II of the Americans with Disabilities Act as a tool for addressing discriminatory state action against Black people such as material inequities in education and policing practices like racial profiling and stop and frisk.39 Paul-Emile’s framing of blackness as disability emphasizes the ideological and remedial ineffectiveness of “race law,” or civil-rights laws and Supreme Court equal-protection jurisprudence focused on race.40 She argues for greater use of disability law, not only remedially, but also ideologically to “capture the historical meaning and contingencies of race in ways that race law does not allow.”41

Importantly, this framework fits within the broader comparative subordination frame precisely because it too treats race and disability as distinct.42 Paul-Emile’s argument is not that a disproportionate number of Black people are also people with disabilities who might meet the statutory definition and thus be entitled to disability legal remedies for discrimination under Title II. Instead, Paul-Emile posits that Black people might argue that blackness itself meets the threshold definition of disability under the Americans with Disabilities Act: “a physical or mental impairment that substantially limits one or more major life activities.”43

Ann C. McGinley and Frank Rudy Cooper seek to expand the concept of intersectionality to include race and disability by organizing the protected group around shared experiences of childhood trauma. They draw on P.P. v. Compton Unified School District (Compton case),44 to argue that cases seeking remedies for structural racial discrimination might reframe these cases as a disability cases.45 The Compton case held that school districts had an affirmative responsibility to serve the majority students of color (57% Latinx, 40% Black, 1% Asian) in the community who were, as a group, subjected to “adverse childhood events” on the basis of violence, poverty, and social determinants of health that produced long-term trauma.46 Under Title II of the Americans with Disabilities Act, for example, these students met the legal definition of “qualified individual with a disability” and, as a group, had standing to challenge Compton Unified School District’s (CUSD) failure to modify the curriculum and programming (and promote trauma-informed education) to meet the needs of the students.47 McGinley and Cooper seek a structural remedy for a harm that has led to extended trauma. They use the concept of “intersectional cohort” that would, according to their argument, advance group-based claims through class actions recognizing that the students of color in these communities are similarly situated and mutually affected by adverse childhood events, namely trauma.48

While McGinley and Cooper deploy an intersectional lens to their analysis of trauma and race, their main engagement with disability studies and legal scholarship is to think of disability law as a remedy and a hook. In this sense, this type of scholarship may fall more squarely in the “race as disability” camp.

B. Intersectionality49

Kimberlé Crenshaw’s groundbreaking work on intersectionality unearthed critical voids in antidiscrimination law and policy related to race and gender.50 Yet, but for a handful of exceptions, discussions of race and disability do not use a critical-intersectional lens to interrogate inequities or a central subject of legal inquiry.51 Crenshaw argued that our system of protected classifications artificially siloed a person’s identity such that one could be a woman or Black person but, at least categorically for antidiscrimination purposes, not both.52 Importantly, Crenshaw surfaced a central insight, that intersectional discrimination operated independent of its components such that the experience of subordination could not simply be captured by any one classification. Intersectionality, in that vein, also became a tool to highlight the experiences of women of color who are not represented discretely in the discourse of either feminism or antiracism.53 Crenshaw’s work “highlights the need to account for multiple grounds of identity when considering how the social world is constructed.”54

Other scholars like Dorothy Roberts—an expert in race, gender, health law, and bioethics—have studied the construction of race through medicine.55 Roberts directly challenges the use of race as natural biological division. Race, according to Roberts, is an invention that justifies political inequality by pretending it is a natural, scientifically supported, division of human beings.56 Roberts critiques the emphasis on comparative subordination to the exclusion of intersectionality:

Disability rights discourse largely has failed to encompass racism, and anti-racism discourse largely has failed to encompass disability. The disability rights and civil rights movements are often compared as two separate struggles that run parallel to each other, rather than struggles that have constituents and issues in common, even as both people of color and people with disabilities share a similar experience of marginalization and “othering” and even though there are people of color with disabilities . . . .57

Returning to Ribet’s work, she seeks to import disability studies into CRS to show how it can challenge and “dismantl[] White supremacy.”58 Ribet examines how race and disability are both concepts that are socially constructed. She also highlights the interconnectedness of race and disability by people who hold both identities.59 Disability and race are both channels through which “normalcy or ideal physicality” are funneled.60 Ribet, working from a disability-studies position, asks why disabled people are marginalized in the first place, rather than solely analyzing why people of color are treated like disabled people.61 This move centers not only those people of color who may not have impairments but are treated like they do, but it also includes people of color with impairments and those with severe disabilities.

Notably, much of the work on intersectionality in the context of race and disability has taken place in the realm of disability studies and not disability law. Yet disability legal scholars have begun to embrace intersectionality and, in doing so, apply it selectively to discrete issues disproportionately affecting disabled people of color such as special education, policing, and prison abolition work.

For example, disability studies scholars, Subini Ancy Annamma, David Connor, and Beth Ferri coined the term “DisCrit” in 2013: a dual analysis of race and ability they apply to education.62 Annamma, Connor, and Ferri believe that racism and ableism work in ways that validate and reinforce each other, and for students of color, the two do not exist apart from each other.63 Similar to other intersectional thought leaders in disability studies, they use DisCrit as a lens to show how race and ability are “intertwined in terms of identity.”64 One of the tenets of DisCrit is that it “values multidimensional identities and troubles singular notions of identity such as race or dis/ability or class or gender or sexuality, and so on.”65 Furthermore, DisCrit scholars show that the tension that exists between disability studies and critical race theory comes from a longstanding history of treating Black Americans as disabled to justify denying the group rights—a history that has caused Black Americans especially to push back against voluntarily identifying as disabled.66

Other scholars use critical race theories to understand disability-specific issues where people of color are more present. Brianne Dávila, for example, applies an intersectional lens to special education and Latinx students. “Disability,” she argues, “does not simply replace race . . . but represents a complex interplay of race and disability in the lives of Latina/o students in special education.”67 Applying intersectionality to data collection, Beth Ferri and David Connor comment that data on “‘racial inequalities in special education’ . . . is not sufficiently disaggregated to fully tease out how the problem of overrepresentation impacts students differently across disability category, race, class, gender, and school context.”68 In part, this tracks a general belief that race and ability overlap and provide a useful way for sorting students.69

Collectively, these scholars link disability and race through the prevalence of disability within race (that is, race is the dominant lens),70 but also note that the relationship between the two is not absolute: “For example, racial disparities are not apparent in less subjective categories, such as blindness or deafness.”71

Liat Ben-Moshe advances perhaps the most Crenshaw-consistent approach to disability-race intersectionality in legal scholarship right now. Ben-Moshe’s scholarship, like that of other scholars writing in the intersectional (race-disability) space, examines education as a site of critical analysis.72 Ben-Moshe explains the need for an intersectional analysis, in part, comes from the disability-rights movement’s adoption of the civil-rights blueprint as a model for antidiscrimination efforts.73 As a result, Ben-Moshe aligns her work with a growing disability-justice movement rooted in intersectionality.74 Ben-Moshe applies intersectionality not only to education but also to family law75 and, most recently, the carceral state (prisons and psychiatric hospitals).76 She posits that, like disability, race should be viewed as a fluid and changing construct not limited to color but also culture.77 Importantly, Ben-Moshe notes the lack of representation of race in disability scholarship while commenting that

scholars performing intersectional analysis . . . may not choose to identify as disability studies scholars; they see these issues as part of their overall racial, cultural, and sometimes marginalized experiences—an example of how disability identity is experienced in different ways by persons with disabilities who are not white and middle class.78

Other disability law scholars have started to wrestle with intersectionality in specific areas of disability law.79 First, Katherine Pérez argues that disability justice requires a union of critical race and disability studies.80 She offers an example of such union: the history exclusion of disabled people likely to become “public charges.” This disproportionately affects people with disabilities who may need access to economic or healthcare supports to work independently, making the regulation itself a self-fulfilling prophecy and grounds for exclusion.81

Second, Jamelia Morgan, another disability law scholar—who, like Ben-Moshe and Pérez, actively engages the tenets of disability justice—applies an intersectional lens to policing. Morgan refers to “disability in public.”82 These theories of policing non-normative bodies, behavior, and minds, however, are fundamentally aesthetic and affective theories of disability.83 That is, the social model of disability alone does not address the roots of why policing and officer training, for example, are unlikely to make meaningful dents in sedimented biases that have shaped law-enforcement institutions from their onset. In fact, as I have argued elsewhere, while the social model of disability underwrites disability antidiscrimination statutes, at least aspirationally, it does not explain the aesthetic-affective responses people experience in the presence of race and disability and, therefore, is incomplete as a descriptive or normative approach.84

II. evaluating current approaches to race and disability

Part II analyzes existing approaches to race and disability in three steps. First, I synthesize the current literature and extract three key lessons in the aggregate. Second, I take these lessons and revisit Neli Latson’s story to illustrate their analytical value and highlight the differences between the two meta-approaches (comparative subordination and intersectionality). Third, I identify three critical omissions in the current literature to facilitate the development of a more comprehensive intersectional approach to race and disability.

A. From Comparative Subordination to Intersectionality

Overall, the comparative subordination literature on race and disability takes as its starting point existing antidiscrimination laws and seeks to maximize its utility. For example, the disability and race subcategory maintains existing siloes in law—codified in statutes or common law as protected classes. Scholars compare disability with race and gender discrimination to illustrate the structural and institutional roots across areas. The goal of this type of scholarship is to mine individual classes—race, gender, disability, sexuality—for similarities that can be used to cross-pollinate and generate remedial theories—such as anti-subordination—to unite protected classes within existing doctrinal constraints.

Comparative subcategories such as disability as race further entrench medical frames historically used to marginalize racially disfavored groups. Scholars in this camp encourage the use of medical frames, in part, to access public benefits and social supports to mitigate the effects of structural racism on communities of color. Over one million Black Americans, for example, reside within a half mile of natural gas facilities and, the toxic emissions from those facilities place them at higher risks of cancer.85 Rates of asthma are also high in Black communities;86 in fact, one study by the Clean Air Task Force and the NAACP found that Black children in these communities experience 138,000 asthma attacks, translating into roughly 101,000 lost school days each year.87 The harm itself is the existence of disability in this subcategory; in the example above, the harm is asthma among Black children. Asthma diagnoses, therefore, may offer families of children with asthma greater access to scarce economic supports or public benefits such as Supplemental Security Income (SSI), or monthly cash assistance, as well as, in some states, simultaneous access to Medicaid as health insurance.88 Race, however, continues to be the dominant lens to define the problem (i.e., how do we solve the problem of race discrimination) and “disability” (more accurately medical diagnosis), a means to an end. As a result, this utilitarian approach rooted in welfare law does not recognize or advance disability as a valued socio-political identity axis.

By contrast, the race as disability comparative subcategory recognizes the limitations of the current antidiscrimination framework for race discrimination and seeks to reframe the harm. Unlike the previous framework (disability as race), however, this approach emphasizes the role of disability civil-rights laws, specifically, rather than public welfare as remedies for race discrimination. Reasonable accommodations and the removal of access barriers become ways to mitigate race discrimination, under this approach, particularly in the context of public programs and services such as carceral spaces (jails, prisons, detention centers) and education.

Intersectionality takes one major step that distinguishes it from the scholarship in the comparative subordination category: both race and disability operate as constructed identities and mutually reinforcing elements for critical reflection. This scholarship, however, while developing within specific issue areas, lacks a unifying theory of discrimination that captures the specific nature of the subordination, its methods and forms, and, consequently, specific ways to address it.89

B. Three Key Lessons from Existing Scholarship

Three key lessons emerge from the current scholarship on race and disability. First, disability and race are more similar than dissimilar when understood in tandem. That is, both are socially constructed categories manipulated by state and private actors to maintain socio-political and economic power by framing both categories in the language of biological determinism.

Second, legal scholars outside of disability law have increasingly reached for disability remedies in the absence of viable curative pathways in the existing civil-rights canon.90 These limitations are clear, yet selective deployment of disability law creates a tension between short term gains (receipt of benefits) and the negative effects of long-term framing (disability is an individual deficit and tragedy). For example, Rabia Belt and Doron Dorfman have argued that the “medicalization of civil rights” while perhaps fruitful for individuals seeking income supports through access to welfare benefits, may, in the long-term, undermine broader normative gains of the disability movements (disability rights, disability justice) to move away from biological frames of disability.91

Third, the emergence of Disability Justice as a movement and critical frame is a contemporary example of intersectionality.92 Organically grown from the experiences of people with multiple marginalized identities, disability justice is a powerful antisubordination lens that “marks a point of departure rather than a destination.”93 That is, Disability Justice is a movement away from disability-rights frames; it is about the process of reframing more than any one end product. Much like intersectionality, therefore, the intentionality of centering historically marginalized voices itself is transformative, much more than any one static by-product. The following Section returns to Neti Laton’s story to consider contemporary approaches and these three core lessons.

C. Application of Existing Approaches to Neli Latson’s Experience

How do existing approaches to race and disability help us understand Neli Latson’s experience? First, consider a comparative-subordination approach that, separately, applies a CRS lens and a critical disability lens. Using a CRS lens, we can see the structural racism operating throughout—from the phone call to the police that triggered the series of events to the lengthy sentence imposed and likely his treatment in the detention facility that relied on restraint and seclusion to control Latson.94 Documentation over the last few years highlights the disproportionate impact “concerned citizens’” calls to police have on people of color, especially Black Americans, for “existing while Black.”95 Studies on the exercise of prosecutorial discretion reveal that prosecutors—who also happen to be predominantly white96—disproportionately charge people of color for similar conduct relative to white people.97 The effects of systemic racism may also affect the length of the sentence imposed and how corrections officers interact with Latson relative to white detainees.98 For example, police and corrections officers may have perceived Latson’s behavior as unruly and insolent, motivating them to exercise control over Latson’s “non-compliant” Black body.99

Applying a critical disability lens, we see other sources of subordination at work. First, Latson’s failure to give the officer his name when asked and subsequent flight, taken together, are common manifestations of a “fight or flight” response associated with people on the autism spectrum, particularly when they are afraid.100 Second, the state of Virginia appears to have denied Latson his right under Title II of the Americans with Disabilities Act to be placed in the most integrated setting appropriate.101 Virginia’s Department of Behavioral Health and Disability Services offered to help the facility holding Latson determine what supports and modifications would be appropriate; however, “this offer was inexplicably refused” and, instead, the prison placed Latson in solitary confinement, one of the most restrictive settings possible in the prison setting.102 Relatedly, the Department of Justice entered into an Olmstead settlement agreement with Virginia in 2012 to ensure that people with intellectual and developmental disabilities did not experience “unnecessary institutionalization” when less restrictive community-based placements might be more appropriate.103

A comparative-subordination approach, therefore, analyzes Latson’s story through two separate lenses—critical race and disability—and then identifies what insights each critical lens offers into the discrimination experienced by Latson. But such an approach is unable to fully capture how Latson experiences the harm and how the different community and institutional actors in this story see him. Also, when we turn to remedies, a comparative-subordination approach falls short because current legal frameworks require disaggregation of the harms experienced by Latson.104 Latson, for example, may file a complaint in federal court under Title II of the Americans with Disabilities Act to address the Olmstead enforcement claims discussed above. He may file federal (and perhaps state) constitutional claims such as cruel and unusual punishment or failure to provide safety and minimal habilitation. He may have due process claims as well. The point is that it would be difficult to fully compartmentalize the harm and certainly none of the legal options available reflects his actual experience.

Using an intersectional, disability-justice approach certainly helps locate the compounded harms experienced by Latson as an autistic Black man. Intersectionalists might argue, for instance, that Latson’s blackness and disability place him at heightened risks for extreme treatment and marginalization. The fact that Latson was a tall Black male teenager at the time, much like Tamir Rice, likely affected how the officer responding to the community call perceived Latson’s manifestations of his autism.105 For example, fifty-five percent of disabled Black people are arrested by age twenty-eight, a risk that is compounded for Black disabled men.106 Further disaggregation by disability shows that “people with autism spectrum disorders are seven times more likely to interact with police over their lifetimes, compared with people without a cognitive disorder.”107

Other research shows that police officers have a skewed perception of the criminality of young Black people relative to young white people.108 “[P]olice interactions are part of a broader set of social practices that reconstitute black boys so that they barely have currency as troubled teens, let alone children in need of protection. Rather, they are seen as putative black men—or black men in waiting—who deserve discipline, social control, and punishment.”109

Similarly, a young Black man seated on the grass in front of a library in a white neighborhood may be about race, and the call by the community member may have tipped the first domino. However, Latson’s actions to withhold his name and flee—two behaviors more associated with disability than race—kept the dominos in motion. Consider “the talk” that Black mothers have with their Black children, in particular, Black boys, about interactions with police officers.110 “The precarious nature of police interactions forces Black parents to disregard the age of their children and implore them to engage in self-monitoring behaviors (e.g., emotional regulation, image management) that are beyond their developmental purview.”111 Latson’s mother may have had a similar talk with him about how he would be perceived and what to do. However, in the moment, under stress, his fight or flight impulse won out.

D. What’s Missing?

Existing analytical approaches to race and disability offer important insights into discrimination at the intersection of the two identity axes. However, we are missing some critical points of nuance. This nuance matters because we want to understand the nature of discrimination at the intersection, who it affects, and how it operates. Such a diagnostic assessment then best positions us to develop legal and policy solutions to respond to the structural issues driving the bus. A comparative-subordination lens captures only one form of subordination at a time (race or disability and how one can inform the other), one identity axis, to the exclusion of the other. Intersectionality, as currently constructed, while shifting the analytical center to ask how race and disability together affect Latson’s experience, does not fully address three issues: people at the intersections, tensions at the intersections, and the aftermath of intersectional discrimination.

1. People at the Intersections

Current approaches apply a one-dimensional approach to disability that does not account for the specific relationship people of color have to disability. We can think of the intersection of race and disability in at least three ways. First, states and private actors have used disability labels to subordinate people of color who have no impairment to maintain institutions and practices of white supremacy. These are people of color without any actual physical or mental impairment who are nevertheless “regarded as” disabled and disenfranchised accordingly.112

Second, disability can be a direct by-product of structural racism. Consider here the most literal forms of states creating impairments through wars, police violence, incarceration, as well as through the less direct but nonetheless powerful social determinants of health such as barriers to meaningful access to health care, education, employment, housing, wealth accumulation, and political power. Similarly, environmental justice concerns show the ways environmental hazards fall disproportionately on people of color, resulting in short- and long-term disability.113 The Flint, Michigan water crisis is such an example.114 People of color in this category may have a difficult relationship with disability. If a person’s respiratory conditions, for example, can be traced to the failure of a landlord to remove asbestos, or intellectual disability can be traced to failure to remove lead-based paint, how do they negotiate their relationship with disability?115

Third, and relatedly, race and disability can mean both. Some people of color are also disabled with chronic illnesses and impairments that may or may not need accommodation. These individuals may have different disability origin stories not necessarily tied to the social determinants of health. These differences matter, for example, for how the individual experiences harm and what legal remedies might make them whole if they experience individual or group discrimination. From a movement perspective, these distinctions matter too with respect to whether individuals will embrace or reject disability identity (or something in between).116

These three groups appear to be dissimilar at first according to their relationship with disability (no impairment, congenital impairment that may or may not be a direct result of state violence and discrimination). However, understanding the connections and nuance allows us to identify the unifying thread—subordination and the social model of disability. The people regarded as disabled are labeled as such because of the historical association of blackness with disability and disability as an accepted proxy for incapacity or deficiency. A second category of disabled people of color may acquire disability because of structural inequities in the allocation of resources or, for example, poor housing located on or near environmental toxins. With respect to the third and overlapping category, people with disabilities, according to the social model, are disabled by society’s responses to their different capabilities. Integrating race and disability should not mean the elimination of one identity; that is, any intersectional theory must see both race and disability theories as critical to understanding what happens with multiply marginalized individuals and groups. While existing theories may advance the social model as a diagnostic or remedial lens, they do not capture how people’s relationships to disability (direct, familial, none, congenital, acquired) affect their willingness to engage with or claim disability as a socio-political identity.

2. Tensions at the Intersections

Conversations about disability among the three groups listed above—people of color without disabilities treated as disabled; people of color who become disabled because of state action (or inaction), and disabled people of color with longer histories of disability (congenital, early acquisition)—are complicated by the difficult relationship between state subordination of people of color by and through disability as well as the use of state institutions—medicine, police, prisons.

For example, some parts of the civil-rights movement for racial justice who sought to portray Black people as “just like” White people, reached for public images to explicitly counter existing narratives of incapacity and incompetence.117 Discussions of disability within communities of color, according to some activists, could undermine broader civil-rights advocacy and were to be avoided. For example, in 1986, Bob Kafka, the founder of American Disabled for Attendant Programs Today (ADAPT)118 requested assistance from legendary civil-rights icon, Rosa Parks, to lead ADAPT’s protest of Detroit’s Public Transit Association.119 The account of this story states that Rosa Parks declined the request because she did not want to “embarrass the black political establishment of her hometown, including Coleman Young, the city’s first African American mayor.”120 Another example of the tension between racial justice and disability relates to the political alignment with rhetorical libertarian and fiscal conservative positions that stressed the value of disability rights as moving people from welfare rolls to financial independence.121 This discursive move, in some ways, pitted disability rights against those conversations in the late 1980s around Black Americans and welfare dependence that Congress would respond to with comprehensive welfare reforms in 1996.122 A third example, Black American novelist and activist, John Oliver Killens, tried to convince literary giant, Ralph Emerson, not to include Black, disabled veterans with psychiatric disabilities in his work precisely because of a fear of entrenchment of associations between disability and race.123

Consider the ways disability sometimes operates within communities of color through the loss of actor Chadwick Boseman to colon cancer.124 The tributes to Boseman poetically (and rightfully) honored his power, talent, and dignity.125 Yet, they also almost consistently glorified (and noted)—as an example of this fortitude and dignity—his private battle to conquer his disability without public attention and without requesting assistance. He gracefully painted a visual homage to Black icons, Thurgood Marshall, Jackie Robinson, and Marvel Comics’ fictional King T’Challa (also known as the Black Panther), while privately managing chemotherapy and living with a chronic illness.126 This is not to say that Boseman was required to disclose his chronic illness to anyone; rather, the operative question is whether Boseman had any choice in the matter.127

Two important facts emerged after Boseman’s death. First, Chadwick Boseman was a Black man with a disability.128 Second, Boseman could not be Black and disabled and a superhero. It is hardly a stretch to say that had Boseman come to the table with an apparent disability (for example, if he were a wheelchair user), or disclosed a less apparent one, studios would likely have passed on making him Hollywood’s leading man.129

When news of Boseman’s death went viral on Twitter, a hostile debate ensued in response to a post by the Black Disability Collective that Chadwick Boseman was a Black man with a disability.130 Some people of color responded with contempt chastising the Black Collective and others for calling him “disabled,” a perceived slight to his strength and legacy. In response, the Black Disability Collective tweeted: “So many of y’all hate disabled people so much that you’re deeply uncomfortable with Chadwick Boseman being referred to as disabled and his experiences being discussed through a disability lens. Cancer is a disability. Unpack your discomfort with this.”131

This tension played out in the largely parallel development of the racial justice and disability-rights movements.132 The independent-living movement, for example, made significant headways with white disabled people after its founding in Berkeley, California, but had more trouble with outreach into Black American communities. Disabled Black activist, Johnnie Lacy has explained this difficulty, in part, as a result of different cultural conceptions of community and what “independence” means.133

3. The Aftermath of Intersectional Discrimination

Consider the compounded effects of structural race and disability subordination on the opportunities available for people at the intersections after they experience the effects of structural discrimination in their lives. For example, in the case of Neli Latson, advocates successfully negotiated a conditional pardon in 2015 from former Virginia Governor, Terry McAuliffe and transferred him to a less restrictive setting, a stepdown program in FloridaFor example, in the case of Neli Latson, advocates successfully negotiated a conditional pardon in 2015 from former Virginia Governor, Terry McAuliffe.134 On June 21, 2021, Neli Latson received a full pardon from Governor Ralph NorthamThe state then transferred Latson to a less restrictive setting, a stepdown program in Florida.135

Even with a full pardon, an apology, and access to ongoing community supports, Latson’s life will never be the sameEven if Neli Latson receives a full pardon, an apology, and necessary community supports, as advocates ask of Governor Northam, Latson’s life will never be the same. According to Latson’s mother, Lisa Alexander:

Every aspect of [Neli’s] life is supervised . . . . He’s not able to live in society. He’s not able to get a job and have a girlfriend. He hasn’t had an opportunity to learn how to drive, to get a license. . . . These are rites of passage, natural progressions you get to experience as a human being. All of those things were stripped away from him.136

Whereas Latson once showed potential for independent, community living, sources report that his continued trauma and fears make him more dependent on assistance from others.137

III. toward an aesthetics of race and disability

Part III offers an aesthetics lens to give meaning and nuance to intersectional analyses about disability and race and further advance a disability-justice framework. I build on my prior theoretical work around aesthetics, specifically, the importation of aesthetics theory into antidiscrimination law to help us understand the nature and process of subordination because of disability.138

A. Defining Aesthetics

I have argued in other work that one of the reasons that disability norms have not shifted as Congress intended is that “[d]isability legal theories do not account for the ways in which the aesthetics of disability mediate rights and the integrative ideal.”139 The aesthetics of disability are those “visible sensory and behavioral markers that trigger particular aesthetic and affective judgments about marked individuals.”140 Contact theory—the core driver of law’s focus on integration as remedial—specifically, does not account for the ways that socially constructed markers of disability—for example, assistive devices like wheelchairs or canes, non-normative speech and behaviors141—trigger what I describe as an “aesthetic-affective” process that makes it difficult for nondisabled people to overcome deeply rooted and seemingly intuitive aesthetic judgments.142

Aesthetics theories developed in the context of art and philosophy, two disciplines concerned, in part, with theorizing human embodiment. Classically focused on artworks, recognition of the beautiful and aspirations of the sublime, contemporary scholars of aesthetic theories—especially critical aesthetics and everyday aesthetics—challenge the notion of a single, universal standard of beauty.143 They also confront the ways in which these standards developed by a few for a few, much in the way that critical legal scholars argue that the normative baseline underwriting law and its institutions was established by a few white men, for a few white men. On the disability front, aesthetics offer not only a space to question (and trace) existing norms of beauty but also how bodies function, perform, and move in the world, as well as which capabilities are privileged and why. The primary aesthetic values associated with disability are beauty, health, and effortlessness.144

Aesthetic judgements about bodies145 can subordinate, oppress, or reinforce existing structures of hegemony. Attraction, repulsion, anger, and disgust are all ways of responding to bodies. The structural roots of what we see and feel in response to certain aesthetic markers reflect well-sedimented values. They serve “a disciplinary function.”146 Those unable to meet those standards are “condemned” and incur penalties in areas “unrelated to attractiveness: worse education, parental care, and healthcare; diminished employment prospects and earnings; harsher punishment in schools during childhood and in the criminal-justice system in adulthood; and reduced likelihood of receiving needed help, among many others.”147

B. The Benefits of Aesthetic Theories

Aesthetic theories can help us unpack intersectional discrimination. A comparative-subordination lens remains useful to understand how concerns about preserving white control over power and wealth shaped the meaning of both race and disability. Segregation and invisibility in both the race and disability contexts were state sponsored attempts to move that which society deemed “ugly” or “disgusting” and hide it away to appease white fears. Law and legal institutions adjudicated aesthetic markers and imposed penalties on those deviating from well-guarded norms. For example, early local ordinances known as the “ugly laws” regulated the visibility and movement of those bearing socially and politically disfavored marks—criminality, poverty, physical or mental disabilities.148 Contemporary local ordinances149 regulating homelessness in public spaces share many of the same substantive goals of disciplining non-normative bodies and minds and protecting the public from discomfort and, perhaps, from triggering existential fears and dread.150

Incorporating aesthetic theories into current discussions of intersectionality and disability justice adds to the literature in the following ways:

1. Helps Us Understand the Aesthetic-Affective Process Taking Place

Encounters with and interpretation of the body are central goals of disability studies. More accurately, disability studies interrogates the “idea of the norm . . . [as] less a condition of human nature than . . . a feature of a certain kind of society.”151 How we perceive other bodies and minds—including which ones we notice152—are central questions of inquiry for critical race and disability studies scholars.153 Disability-studies scholar Rosemarie Garland Thomson’s conception of “staring” directly relates to critical aesthetician and philosopher, George Yancy’s “white gaze.” Yancy describes deeply rooted histories of structural discrimination baked into the acts of staring or white gazing as “a violent process . . . not an atomic or an inaugural event that captures, in an unmediated fashion, the bareness, as it were, of ‘objects.’”154

Perceptions of whiteness as a universal norm set up not only blackness as nonnormative, but also disability. Yancy explains that deviance from whiteness, therefore, “the Black body as ersatz, aesthetically deformed, morally disabled (think here of the curse of Ham or Canaan), excessive, monstrous, disgusting, that is distasteful.”155 Whiteness, accordingly, creates the normative baseline by establishing proper mannerisms, comportment, acceptable aesthetic and emotional responses to certain images and stimuli, triggers for images and emotions defining “threat” and danger, and even acceptable behavioral and sensory responses.156 Contrary to theories of scientific racism, “whiteness” is not a fixed experience but a “perceptual practice . . . that constructs the Black body as an object of disgust and fear” when, for example, a black person simply enters what are considered white spaces and “disrupt[s] the harmony and symmetry.”157

2. Demonstrates the Role of Law in Defining Aesthetic Markers of Race and Disability as Tools of Subordination

Laws have created and reinforced aesthetic markers of race and disability. Legal historians Ariela Gross and Alejandro de la Fuente discuss the ways that early colonists “created race through law.”158 This process of “[l]egal race making,” as they describe it, was a distinctive feature of the evolution of slavery in the United States. “[T]he law constituted “‘blacks’ as social outcasts, conflating their social existence with enslavement” such that “blackness, rather than enslavement, [became] the mark of degradation,” and outlasted slavery.159

Aesthetics allow us to understand compounded effects of racism and ableism and interdependence as diametrically opposed to “whiteness,” competition, and independence. The marks of blackness (and to some degree, race more broadly), at times, mapped onto disability and vice versa. “If, in the dominant culture’s vocabulary, blackness signified subhumanity, it also came to signify congenital ‘disability,’ another form of “difference” that further marked black bodies for expulsion.”160 One example of law’s early construction of blackness as disability is military enlistment that prohibited “lunatics, idiots, and Negros.”161 “[I]t was imperative that the black body and the black ‘mind’ be portrayed as uninjured by the injuring institution of slavery in order to disprove one of the main antiblack arguments that surfaced after emancipation—that slavery had made blacks ‘unfit’ for citizenship.”162

State institutions and actors policed the line between whiteness and blackness through rhetorical and legal declarations of the biological differences and inferiority of Black people that made them unable to manage participation in democratic governance and civic duties. Medical and scientific “proof” then became the means of marking people.163 Scientists and thought leaders at some of the nation’s top universities went to great lengths to make blackness a concrete, identifiable, and thus, biological category including dissecting black bodies and announcing such biological markers as cranial measurements proved Black people had smaller skulls and, thus, lower intellect, poor moral barometers, and were “not of the same blood” as white people.164 “Whiteness,” therefore, became synonymous with health, “physical fitness, mental rigor, and genetic superiority.”165

These constructed markers of blackness—”constructed” in that they had no inherent meaning or value—became “legitimate” justifications for restrictions on access to public spaces, travel, as well as the denial of legal personhood.166 One interesting historical insight offered by de la Fuente and Gross is the framing of physiological and moral inferiority provided a seemingly “neutral” and fact-based justification for slavery and close management of Black people. In this way, the arguments for slavery relied more on manufactured physiological differences than on politics or philanthropy.167

Tying freedom of movement, economic livelihood, and socio-political participation to race rather than status heightened the stakes for legal recognition as white (and able-bodied) identity as opposed to Black (or disabled) identity.168 Self-identification did not matter in this story. It was about how courts and communities perceived you.

What evidence became relevant to and probative of whiteness or blackness in trials on racial identity? Aesthetics help us understand how courts and procedural rules allowed people to move across the racial categories. In addition to the “biological” markers of race noted above, litigants relied on the performance of acts of citizenship—serving in a militia, as a witness, or on a jury; voting; or carrying a handgun—associated with whiteness as probative evidence of white racial identity.169 This move created a bright line between those who performed citizenship (and, thus, were racially “white”) and those who did (or could) not (and, thus, were racially “Black”). As a result, disabled people of color in this schematic offered two axes for civic exclusion—blackness and disability—which were mutually constitutive and reinforcing.

Witnesses offered evidence of appearances and reputation, probative of white racial identity. Performing social acts of whiteness included Black men marrying white women; “associating with white people or black people on a social level;” “attending parties;” and even dancing.170 Notably, “[b]y deferring to juries, judges allowed evidence of racial performance to become as important to the definition of race as fractions of ancestry were in the statutory law.”171

The probative value of the evidence of whiteness was highly gendered. While performances of citizenship lent credence to claims of “white manhood,” women’s whiteness relied on “sexual purity and moral character.”172 de la Fuente and Gross tell the story of two of the most widely followed racial-identity trials in New Orleans. Two women—Sally Miller and Alexina Morrison—claimed they were “white” and sued for their freedom. Despite a written record that might suggest otherwise, they claimed victory, in part, by advancing evidence of their markers as white women: “beauty, sexual purity, and moral character” such as industriousness and cooperation.173 Physiological evidence of racial differences—for example, eyes, teeth, or bone structure—could be countered successfully, as Alexina Morrison showed, with a proffer of association with white women, including attendance at social events such as dances.174 The litigation of racial identity in Virginia and New Orleans, for example, “helped to constitute whiteness as a category of social superiority, inseparable from the privileges of citizenship and from gendered notions of purity, beauty, and propriety.”175

3. Creates an Extralegal Means of Public Enforcement of Aesthetic Norms that Reinforces Structural Subordination

Tying rights and privileges to specific identity categories (directly or indirectly) can (and did) deputize the public to surveil and police non-normative Black and disabled bodies. Directly, local ordinances like the “ugly laws” emboldened private individuals to police non-normativity. Similarly, local ordinances allowed private individuals to police blackness, in part, because of the association of “blackness” with slavery and disenfranchisement. This “empowered whites to stop” Black people “at any time to verify that they were in possession of a written pass to be in the streets of New Orleans or on the ‘public roads.’”176 Stand your ground laws like the one in Florida that led George Zimmerman to pursue Trayvon Martin are the progeny of these early ordinances and practices.177 Similarly, local ordinances that encourage private individuals to report alleged abuses of disabled parking, for example, should be viewed in this light.178

4. Helps Explain the Longevity and Resistance to Change of Racism and Ableism but Also Offers Remedial Paths Forward

The deep aesthetic and emotional responses suggest that the normative shifts sought by antidiscrimination laws may be more difficult than social-justice proponents understand. Intersectionality locates the harm at the intersection, the person who is both a person of color and disabled. Aesthetics help us understand why, how deep this discrimination runs, what exclusion and reactions might look like at those intersections and then how to think about meaningful remedies.

One practical implication of aesthetics research is to challenge the effectiveness of “awareness” and “training” prescriptions that do not adjust for aesthetic and affective biases. For example, in the context of police reforms to promote racial and disability justice, Devon Carbado and Patrick Block describe a cyclical feedback dynamic such that increased contact or exposure to Black men and awareness of biases may actually reinforce assumptions of Black men as dangerous and “render black boys less cognizable as youth.”179

Aesthetics scholars suggest that attention to aesthetic-affective processes can promote change. George Yancy, for example, describes a process of “suturing” and “un-suturing”:

Because white people collectively engage in habituated embodied white racist practices that are mutually reinforcing within the context of socially quotidian spaces, and that are further supported by deeply ingrained and sedimented historical, institutional structures, the assumption that white people can engage in practices of un-suturing solely through the act of intention, as one might change his/her clothes at will, is misleading.180

Un-suturing, then, is not easy, automatic or magical, but, instead, requires “‘the active repetition of acts, verbal and nonverbal, that continues to communicate’ the responsibility to engage opportunity for creating fissures in the system, disruptions in one’s mode of being white.”181

Because disability is often understood as an aesthetic disruption when it is “visible”182 or intentionally made hyper-visible through performance, disability itself can create the conditions for un-suturing described by George Yancy, the kind required to disrupt the fraught status quo. This is yet another reason to center and move out of the way for disabled people of color, in particular, disabled women of color to generate not basic cognitive dissonance that can be swept away, but an aesthetic-affective process that offers an opportunity to grapple with and un-suture ties to white, ableist histories and institutions.

A.W. Eaton offers a non-legal intervention to change the aesthetic-affective process triggered by non-normativity. She argues that “resistance to fat oppression” in society, for example, can take shape in the “Aristotelian strategy of altering bodily taste through the skillful selection and use of representations”—quite literally diverse images in media but also representations in places of power.183 “[T]he strategy of consciously altering the kinds of representations consumed by an individual or a society can be extended to other forms of appearance-related oppression based in race, disability, age, gender identity and other visible markers of ‘difference.’”184

C. Application of Aesthetics

1.Debunking Police Training as a Panacea for Police Violence

There are well-known incidents of police violence against people of color who also are people with disabilities—for example, Sandra Bland was a person with psychiatric disability.185 However, police do not see the disability; rather, police only see a Black or brown body and its movements as threats through the lens of race. Officers, trained and equipped to enforce compliance,186 have a distorted view of the situation because they have mistakenly applied a flawed lens to the person’s behavior. Yet media reports continue to discuss police shootings of people of color with disabilities through the singular lens of race.

I want to return to Neli Latson. Aesthetics offer at least two unique insights here. First, research on associations between dangerousness and Black men suggests that the “faces of black men attract more visual attention from white respondents than comparable faces of white men” even when those Black men’s faces are neutral without showing signs of anger.187 Carbado and Block draw the following conclusion from these studies: “a black man who is providing literally no evidence of threat is nonetheless likely to attract the attention of police officers, so ingrained are the stereotypes linking him with threat.”188 When the community member called the police to report Neli Latson, the person noted that he might have a gun (something ultimately shown to be false).189 This person and the officer who responded may have looked at Neli sitting on the grass and noticed he was in a predominantly white neighborhood, which may have triggered aesthetic associations of disgust and threat; they responded accordingly. Because Neli Latson did not show the aesthetic markers of disability in an obvious way, the dominant frame of reference was race.190

Second, debates about the proper legal and policy solution for police violence are front and center. Some who wish to adopt a more reformist approach to address police violence tout training as an important point of intervention. The aesthetics literature discussed above cautions against a traditional transfer of information as a fix. Would better training have spared Neli Latson from harm? Not necessarily—at least not in the current format. One idea for meaningful training for those who adopt this position that actively engages aesthetic and affective dimensions of race and disability may be the use of technology like virtual reality. This can simulate (or recreate) past encounters between police and communities of color, disability, and those at the intersection and, as a result, trigger sensory and cognitive aspects of observation and action.191 Only a handful of police departments have started to experiment with virtual reality in their training,192 but theses trainings appear to be designed to address biases on the basis of race or disability (like autism or psychiatric disabilities) but not both.193

2. Intersectional Race and Disability Discrimination in Employment

Aesthetics theories also help us better understand intersectional discrimination in other areas such as employment. Consider workplace appearance or grooming codes.194 In Cleveland C. v. Department of Defense, complainants, Black men, worked for the Pentagon Force Protection Agency (PFPA) and had pseudofolliculitis barbae (PB), a skin condition caused by shaving which is more common among Black men because of their curly hair.195 One way to manage this condition is to keep a short beard rather than to regularly shave. PFPA had a no facial hair policy; they previously granted medical waivers but then suddenly stopped granting such waivers citing concerns about complainants’ abilities to use respirators with their beards even though they never faced an emergency when they needed respirators and they “all passed standard respirator fit tests with short beards.”196 Complainants then requested a reasonable accommodation but PFPA denied their requests categorically without conducting individualized assessments.197

Pre-2008 Amendments to the Americans with Disabilities Act (ADAAA), plaintiffs alleging discrimination on the basis of PB did not succeed in court and post-2008, there were no EEOC decisions about PB and disability discrimination under the ADAAA.198 To fully understand the nature of the harm experienced by the complainants, we need to apply an intersectional lens that shows why they faced both race and disability discrimination as Black men with PB subjected to grooming codes based on white men’s facial hair. Grooming codes are rooted in aesthetic norms that privilege whiteness.199

Conclusion

The growing body of scholarship focused on race and disability signals a new direction for critical legal scholarship. This intersectionality revolution has only scratched the surface in disability law and requires further theorizing. This Essay begins a broader scholarly agenda in this arena. Aesthetics theories of discrimination offer a useful lens to wrestle with both race and disability as a common point of analysis and as a diagnostic lens to understand how society has constructed disability and racial markers and has used them against the other.

I want to share one concluding question, the answers to which can further advance critical race and disability justice: how do we track race-disability (and other axes of) intersectionality in law? Disability data are hard to come by, in part, because of an association of disability with medical data and, thus, health privacy laws.200 The need for intersectional public data collection and dissemination could not be more important. Racial and disability justice are at the forefront of the major issues of the day—police violence, coronavirus, access to healthcare, gig employment, and living wages. Calls for standardized intersectional data collection remain largely unheeded, but the regular collection and public dissemination creates opportunities for future research and public accountability in policing, healthcare, and employment.201

Professor of Law and Martin Luther King, Jr. Hall Research Scholar, University of California—Davis School of Law; J.D., Yale Law School; A.B., Dartmouth College. Thanks to Guy-Uriel Charles and Melissa Murray for thoughtful comments on earlier drafts, to Emily Roberts for her research assistance, and to the editors of the Yale Law Journal for excellent editorial assistance throughout the process.