Hybrid. Ruth Colker

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СКАЧАТЬ of categories as we create them. The fact that we use certain categories for census reporting does not mean that we have to use them in the context of affirmative action.

      Ongoing controversies over racial identity re-emphasize the point made earlier that racial identity is not entirely a biological or anthropological construct. Although we tend to think of race as a given, some people clearly make choices concerning their racial identity. The very existence of a multiracial identity movement, therefore, represents a positive political development because it emphasizes the socially constructed aspects of racial identity. It draws people’s attention to the fact that we make decisions about how to label people racially. There is no “natural” racial categorization system.

      Disability categorization also creates controversy although the dimensions of the problems are different. As with racial minorities, there is no monolithic understanding within or outside of the community of people with disabilities as to whom should get covered by various statutes. For example, people often complain that the Americans with Disabilities Act should not cover physical problems such as obesity. These comments are often premised on inaccurate stereotypes of such people, rooted in a belief that they “choose” their disability or are responsible for their problems. Real life stories can help overcome those stereotypes. In one poignant exchange on the internet, someone with a disability complained about people who are obese being considered disabled because they could control their weight. An obese individual wrote back, explaining that a physiological condition precluded her from losing weight; she also documented the extensive discrimination she suffered because of her body size. The original writer immediately recanted his criticism, ironically noting that his own disabilities precluded him from gaining weight. Yet, it had never occurred to him that people who are obese also can have physiological problems affecting their body weight. By putting a story behind the labels, these individuals were able to overcome their stereotypes. Had there been no way to identify the subcategory of “obesity” within the label “disabled,” this helpful exchange might not have occurred.

       B. Categories Can Serve Ameliorative Purposes

      Not only are categories needed to facilitate ordinary conversation, but they are needed for legislative purposes. We have to define who is “gay, lesbian, or bisexual” if we are to create nondiscrimination statutes, same-sex partner registration, or affirmative action.

      Similarly, we need categories in the race context to develop affirmative action. Who should qualify for such programs? The Hylton controversy brings this question explicitly to the forefront. Why do we have affirmative action? Should Hylton have been rendered ineligible because of her economic background, unwillingness to promise to serve as a “black” role model, or because of her racial background, light skin, or conservative politics? We need to articulate more precisely why we have affirmative action in the education context to know how to resolve Hylton’s candidacy.

      Nonetheless, the implications of a bi perspective are not monolithic. A bi perspective on sexual orientation and gender may be very different from a bi perspective on race and disability. An individual who identifies as a bisexual may only be making a statement about her feelings. If she has not formed sexual relations with people of both biological sexes during her lifetime, she is not making a statement about actions. In other cases, it may reflect a statement about her actions. In virtually no case will a bisexual identity reflect a statement about her discernable physical appearance or family history.

      Similarly, a bi perspective on gender usually reflects a statement about feelings or attitudes. Embracing a “bi” identity often means that one rejects or questions the traits that are considered “normal” for one’s biological sex. A bi perspective on gender may also reflect a statement about actions. A person may cross-dress, pursue a nontraditional occupation, or even have surgery to align one’s biological self with one’s psychological self. These actions or traits may also make an individual visually discernable as transgendered, although many individuals who are transgendered “pass” as fitting one pole of the bipolar categorization scheme.

      By contrast, a bi perspective on race may not correspond to any particular feelings, attitudes, or life experiences. In some cases, such as that of Scales-Trent, one may be light skinned and appear “white” but identify as black because both of one’s parents are black. Society may view Scales-Trent as multiracial or even white because of her appearance, yet she self-identifies as black. Like some multiracial individuals, Scales-Trent may easily “pass” as belonging to one pole of the bipolar categorization scheme. Some of these individuals have a strong self-identity of being multiracial, and resent society trying to force them into the categories of black or white. Nonetheless, most individuals who have multiracial family histories prefer to be considered members of a monolithic racial category such as “black.” Being multiracial can therefore be a statement about identity or can simply be a statement about one’s ancestry. Often, it is physically indiscernible and may be unknown to the individual herself.

      There is no parallel social movement for individuals who are between categories of disability. There is not even a label for this category. Thus, it is hard to argue that lying between categories can be a source of identity. In some cases, however, individuals who lie between disability categories have received public attention as “unworthy” of being considered disabled. For example, in one Wall Street Journal article, reporter Heather MacDonald questioned why mental impairments, drug addiction and alcoholism, and learning disabilities should be labeled as “disabilities” under the Social Security Act, because individuals with these disabilities purportedly “choose” or fabricate these impairments for financial gain. In a broadscale critique of “learning disorders,” she reports that “stories abound of parents coaching their kids to misbehave in school or fail their tests ... to ensure that they will fall back several grades and thus fail the ‘age-appropriate’ test”³⁹ so that their parents can receive a monetary windfall. Her claim that “stories abound” of parents coaching their kids to misbehave is seemingly based on one isolated story from Wynne, Arkansas. Nowhere does she mention that most children only receive money to pay for designated medical and educational needs to specified providers.⁴⁰ By disputing that these children have any genuine disabilities and by promoting the stereotype that their parents coerce their children into appearing disabled for money, Mac-Donald heightens the mistreatment of individuals who fit between the categories able-bodied and disabled. Her article highlights the need for us to recognize the category of people who are somewhat disabled yet do not fit the stereotype of the “truly disabled” in order to make sure that they are receiving assistance in the face of public criticism like that of MacDonald.

      One purpose of MacDonald’s article was to criticize the Supreme Court decision, Sullivan v. Zebley,⁴¹ in which the Court concluded that the Social Security Administration had too restrictive a definition of “disability” for the purpose of determining whether a child qualified for Supplemental Social Security. The Social Security Administration’s definition failed to include such obviously disabling impairments as spina bifida, Down’s syndrome, muscular dystrophy, autism, AIDS, infant drug dependency, and fetal alcohol syndrome.⁴² Plaintiff Brian Zebley had been denied SSI despite the fact that he had congenital brain damage, mental retardation, development delay, eye problems, and musculoskeletal impairment, because his problems did not meet or equal any single disability category.⁴³ The Supreme Court required the Social Security Administration to move to a more functional approach so that children who fell between discrete categories, and combined categories of disabilities could be covered by SSI. MacDonald’s broadside would leave such children unprotected by federal law.

      The New York Times also published a critique of special education programs for children diagnosed as learning disabled but, unlike the Wall Street Journal, chose to attack a program at one of New York’s elite private schools.⁴⁴ In that article, the schools and parents were not criticized for trying to get a free financial windfall from the government; instead, the parents were criticized СКАЧАТЬ