As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short- or long-term constitutional strategy. Rather, these lawyers take the Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc., holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere.
This deconstitutionalization has costs. State laws still facially discriminate against people with disabilities, often people with mental disabilities, in areas like family law, voting, commitment proceedings, and the provision of benefits and licenses. Federal legislation is an incomplete tool to challenge the exclusions these laws create. Progressive theorizing of constitutional law is happening, just not regarding disability. Although functionally justifiable, this reluctance to pursue constitutional claims impoverishes the disability rights movement, as constitutional claims engage courts in articulating our core values in a way that statutory claims do not. Disability law can and should do more to fulfill the Constitution's guarantees of equal protection and full citizenship. In this Article, I explore what a more progressive future for disability constitutional law might look like. Building on gains by the LGBT movement, I offer specific areas where courts should entertain a more contextualized application of the Equal Protection Clause in disability cases.
Modern disability law is primarily a statutory field. The main relevance of constitutional law is to provide the basis for congressional legislation, either through Section 5 of the Fourteenth Amendment, the Spending Clause, or the Commerce Clause. Although historically disability advocates pursued constitutional theories to reform institutions and achieve access to schools, today the key tool for disability rights is litigation under federal statutes. By and large, this strategy has been successful: the Americans with Disabilities Act (ADA) addresses discrimination in employment, government programs and services, and access to privately owned places of public accommodation.1 The Fair Housing Act covers discrimination in housing,2 and the Individuals with Disabilities in Education Act provides a right to education for school-age children with disabilities.3
This Article takes up the issue of whether, given the preeminence of a statutory strategy, there is any future for disability constitutional law. The largest constitutional "moment" for disability law was the Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc.4 There, while ultimately striking down a zoning ordinance as infringing the Equal Protection rights of individuals with mental retardation, the Court held that the disability classification was only entitled to rational basis scrutiny.5 In other state and federal constitutional contexts, Cleburne has been applied to achieve a more nuanced Equal Protection review of discriminatory state action.6 But not with disability, where subsequent cases have confirmed only Cleburne's most restrictive aspects.7 Constitutional law has evolved, but it has stayed frozen in time for people with disabilities.
Disability advocacy has of course continued, but has been primarily focused on legislative reform, culminating with the ADA, and litigation enforcing these statutory rights. …