"Every Picture Tells a Story, Don't It?": The Complex Role of Narratives in Disability Cases

When we think of the term "disability," the word conjures up a multitude of images, some of them positive, some not. Even the positive ones may carry with them a sense of "specialness" that is inconsistent with our sense of equal or fair treatment. Moreover, the differences among disabilities—physical or mental disabilities, mental retardation or mental illness, deafness or autism, congenital disabilities or those that develop later in life after an accident or trauma, alcoholism or quadriplegia, obvious or non-obvious (or hidden) disabilities, epilepsy or learning disabilities, back problems or obesity, single or multiple disabilities—not only have presented very difficult problems of political coordination, but cut against the notion that there is a master narrative that can function in disability cases.

In this essay, I want to discuss the role of disability narratives in litigation. This task is potentially a quite complex one, one to which it is hard to do justice within a short essay. So rather than attempt a comprehensive assessment of the role of narrative in disability cases, let me start with some general observations about the nature of disability litigation narratives, the barriers to narrative coherence created by the opacity of courts, especially the Supreme Court, and, finally, the possibilities that narratives can present for expansion of rights of people with disabilities.

If we start with what might be called the pre-litigation or non-litigation narratives of people with disabilities we might be able to list a number of them, some of which are negative, some of which are positive (at least as conventionally understood), and still others ostensibly positive or neutral but containing troubling seeds of negativity. If one focuses not on full-fledged narratives but on abstracts of narratives with a heavy emphasis on the person's character, a non-exhaustive list might include the following:

Negative descriptions:

• • The person with a disability as damaged and abnormal (Minow)

• • The person with a disability as blameworthy

• • The person with a disability as a special pleader (along with other identity groups) and possibly as a whiner

• • The person with a disability as hypersexual

• • The person with a disability as asexual

Positive descriptions:

• • The person with a disability as an overcomer or super-achiever (Drimmer)

• • The person with a disability as a rights-bearing individual (Minow)

• • The person with a disability as limited more by interactions with his or her environment and with non-disabled others than by any impairment he or she may have (the social construction model) (Minow, Rovner)

• • The person with a disability as having strengths as well as weaknesses, and as being more than only a person with a disability

Neutral or ostensibly positive descriptions that contain problematic implications:

• • The person with a disability as pitiable, deserving of protection but not entitled to respect

• • The person with a disability as inevitably dependent on others for addressing many or most of his or her needs

• • The person with a disability as a hard worker, thankful for the opportunity to be productive, even in "jobs" that others might characterize as demeaning

• • The person with a disability as being adequately served by minimal improvements in his or her life, leading to the soft bigotry of low expectations (see Board of Education v. Rowley)

• • The person with a disability as suffering from a medical problem (the medical model of disability), whose disability either can be "cured" by medical interventions or, if not so amenable, is a permanent feature of the person's life

Not only do the above images interact in complex ways, but the very language we use to describe disability is a highly contested arena. Thus, people with disabilities and their advocates (in particular people with mental disabilities) have long emphasized the desirability of "people-first" language (such as "people with mental disabilities") over phrases such as "the disabled" to stress that people with disabilities are not some "lumpen" mass but rather individuals who happen to have a relevant characteristic (in this case, disability). Some people with physical disabilities and their advocates prefer the phrase "disabled people" to...