Anti-subordination above All: a Disability Perspective

 2007 Ruth Colker. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Heck Faust Memorial Chair in Constitutional Law, Michael E. Moritz College of Law, The Ohio State University. I would like to thank former Moritz librarian Sara Sampson, as well as current Moritz librarian Katherine Hall for their excellent bibliographical and research assistance. I would also like to thank Moritz law students John Billington, Catherine Woltering, and Pamela Bridgeport for their excellent research assistance. I would also like to thank the Moritz faculty for their many helpful suggestions at my summer brownbag workshop on July 26, 2006, and particularly thank Marc Spindelman for his many helpful suggestions. I would like to thank The Ohio State University for my “Distinguished Scholar” award which helped fund my team of research assistants. I would also like to thank Martha Nussbaum for her invitation to speak about disability theory at the University of Chicago Law & Philosophy Workshop in Fall 2006; that invitation sparked the development of this Article. Finally, I would like to thank the Workshop participants for their engagement with me on this topic. 1 John Rawls’s theory of justice, for example, presumes that society consists of “free and equal persons . . . who can play the role of fully cooperating members.” JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 24 (Erwin Kelly ed., 2001). Further, “we must add to these concepts those used to formulate the powers of reason, inference, and judgment.” Id. As Martha Nussbaum points out, Rawls excludes individuals with disabilities from consideration when designing basic political principles. MARTHA NUSSBAUM, FRONTIERS OF JUSTICE 111 (2006). Similarly, Ravi Malhotra argues that Rawls’s theory suffers from several problems which make it difficult to apply to the disability area. See Ravi A. Malhotra, Justice as Fairness in Accommodating Workers with Disabilities and Critical Theory: The Limitations of a Rawlsian Framework for Empowering People with Disabilities in Canada, in CRITICAL DISABILITY THEORY 70, 74–83 (Dianne Pothier & Richard Devlin eds., 2006). Norman Daniels applies Rawls’s theory of justice to the disability arena by finding a justification for reasonable accommodations so that we can keep “people with disabilities functioning as close to normally as possi-