By Jasmine E. Harris
Some have suggested that the COVID-19 pandemic could be a moment of what critical race theorist Derrick Bell called “interest convergence,” where majority interests align with those of a minority group to create a critical moment for social change.
It would be easy to think that interests indeed have converged between disabled and nondisabled people in the United States. From education to employment, modifications deemed “unreasonable” became not only plausible but streamlined with broad support.
Consider, for example, flexible work-from-home policies; expanded federal proclamations that the Americans with Disabilities Act (ADA) is broad enough to cover individuals with, recovering from, or regarded as disabled because of COVID-19 or long-COVID; and efforts to prioritize and normalize mental health care. Or, consider the California legislature’s inclusion of a separate state budget line item for a “compensatory education” fund for special education students negatively affected by disruptions in services during COVID-19, accessible to disabled students without litigation.
But what has transpired is not interest convergence, at least not through Bell’s analytic lens. Recently, President Biden professed during a primetime interview on 60 Minutes — a news program with an audience of more than 7.5 million viewers — “the pandemic is over” and “[e]verybody seems to be in pretty good shape.”
This is an odd proclamation, considering that more than one million lives have been lost to COVID-19 and one in five people who have had the virus now live with long COVID. Our national pivot to “return to normalcy” has revived associations of disability with fiscal burden. Consider, for example, the ostensible costs associated with newly disabled people such as strains on the social safety net, especially Social Security. Similarly, private employers have expressed concerns about potential costs associated with everything from group health insurance, to disability accommodations related to COVID and long COVID.
Why Haven’t Interests Converged During the COVID-19 Pandemic?
The pandemic lacks a few critical catalysts for interest convergence in the context of disability.
First, laws, policies, and public rhetoric have consistently reinforced the expendability of disabled people both domestically and internationally. At the onset of the pandemic, I wrote about “the frailty of disability rights,” which are and continue to be expendable, negotiable, and similarly vulnerable to sacrifice in service of the needs of able-bodied, neurotypical people.
Take an early example from the pandemic. As questions arose about the availability of ventilators and other medical resources, health care providers dusted off crisis standards of care that explicitly devalued the lives of people with intellectual and developmental disabilities by noting their potential unsuitability for treatment in times of emergency rationing.
These messages have persisted. Public health officials continue to highlight the disproportionate impact of the virus on disabled people with underlying health conditions as a way to assuage public fears about the virus. Yet such framing assumes an able-bodied, neurotypical audience whose comfort depends on keeping disability at arm’s length to avoid an existential crisis.
Second, despite the prevalence of disability in society (61 million adults in the U.S.), I have argued that relatively less public understanding of the nature and breadth of disability exists, in part, because of a complex relationship between disability and privacy in American law and society. Disability often means visible mobility impairments, and hierarchies of deservingness shape the public’s imagination of a small universe of severely disabled individuals, rather than of a more universal experience.
Third, nondisabled people have not publicly acknowledged nor reckoned with their mutual experience (albeit temporary) of navigating an ableist world. There have been no “aha” moments of self-interested empathy, nor a Cold War characteristic of interest convergence, and thus, legal and policy outcomes advanced by nondisabled people that coincidentally benefit disabled people are unlikely to produce lasting change.
Beyond Interest Convergence
Notably, interest convergence is descriptive and not a normative goal. Professor Bell used interest convergence to capture and lament the fleeting success of fair-weather reforms. Specifically, using the example of Brown v. Board of Education, he argued that what appeared to be fundamental shifts in political consciousness more likely represented a moment of political opportunity that dispensed with legally acceptable separate but equal principles justifying segregated public education in the United States.
Nevertheless, disability rights in the pandemic fail to meet even this low bar — the political opportunity was left largely untapped; no major, beneficial legal reform (even if in name only) emerged.
Still, aspects of Bell’s work remain resonant in this moment.
Bell understood that deep structural inequities could be a counterforce against which social movements had to continue to fight to change. The pandemic has led to greater horizontal coalition building among social justice organizations that recognize disability’s intersectionality with other marginalized identities and the compounded subordination experienced by those at these intersections. At the same time, the elasticity of disability law predicated on a broad definition of disability creates opportunities for the construction of new remedial pathways using disability frames. Civil rights coalitions have deployed disability frames in immigration detention facilities, psychiatric hospitals, jails, and nursing homes to challenge public health failures, and brought voting rights cases to address restrictions on early voting and the availability of ballot drop boxes. Most recently, the Fourth Circuit held that gender dysphoria meets the broad definition of disability articulated by Congress in the ADA in 1990 and reiterated in the ADA Amendments Act in 2008. In doing so, the ADA provided a remedy for misgendering, harassment, and violence experienced by a trans woman in prison.
Thus, while the COVID-19 pandemic may not be a watershed moment of interest convergence in the history of disability rights in the United States, perhaps it can be a point along a more inclusive path to disability justice.
Jasmine E. Harris is a Professor of Law at the University of Pennsylvania Carey Law School. She is a law and inequality scholar whose research focuses on disability law and the humanities.