Disability and Constitutional Legitimacy

Abstract: Disability classifications can take one of two forms. The more familiar form targets people with disabilities on account of their disability and harms them. This type of government classification receives deferential rational basis review and is therefore difficult to challenge. But government action that benefits people with disabilities also classifies on the basis of disability and receives rational basis review. This Article focuses on classifications that provide preferential treatment to disabled people precisely because of their disability—through disability affirmative action programs—and argues that their legitimacy is bolstered, not weakened, by the rational basis standard. It does so by distinguishing the constitutional status of affirmative action on the basis of disability from the constitutional status of affirmative action on the basis of race. That difference is the result of the Supreme Court’s modern Equal Protection jurisprudence, through which race-based affirmative action has become constitutionally-suspect racial discrimination, no matter whom it benefits or harms. By contrast, to the extent disability discrimination disfavors the nondisabled, it simply disfavors members of a non-suspect class. This Article’s approach to disability rights is both novel and necessary. Attempts to treat disability as a suspect or quasi-suspect classification have failed. Relying on rational basis first principles, this Article demonstrates that the forgiving standard of review could be used to shore up governmental support for disabled people. This framing could save disability affirmative action from the fate met by other civil rights initiatives.