This Article examines the difficulties involved in translating the social model of disability into the idiom of constitutional law. The immediate focus is University of Alabama v. Garrett. Both parts of this Article consider how disability rights claims collide with a discourse of legitimacy in constitutional law. Part I focuses on the arguments presented in several major Briefs filed in support of Garrett. Constitutional doctrines are conceived as paring tools and it is shown how the Court used these doctrines to easily pare down the body of evidence Garrett's lawyers sought to claim as relevant in justifying the ADA as Section 5 legislation. Among these doctrines are state sovereign immunity, state action, and disparate treatment. Part II examines how the language of equality, rights, and discrimination is used in a segment of the pre-Garrett disability literature. A contrast in the work of legal and non-legal academics is identified, namely, that legal academics tend to identify, to a much greater extent, the elements of the constitutional landscape that are inhospitable to constitutional claims to reasonable accommodation.
Constitutional Doctrine as Paring Tool: The Struggle for "Relevant" Evidence in University of Alabama v. Garrett,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol35/iss1/4