Changing the Frame

She hopes that the questions we ask today surrounding cases involving disability law will set the stage for a more inclusive future—one where disability does not cast such a long shadow over an individual’s life chances or dictate societal value.

“History tells you why you have the laws and the legal system that you do, as well as the effects over time,” Tani says. “I love the pairing of law and history because it has both explanatory power and critical power.”

Tani is the first graduate of the University of Pennsylvania’s J.D./Ph.D. program in American Legal History. Prior to returning to Penn, Tani was a Professor of Law at the University of California, Berkeley and held appointments at Columbia Law School and Yale Law School.

Her prior research has explored various landmark laws, including the Social Security Act of 1935, known as the cornerstone of the modern welfare state, and Title IX of the Education Amendments of 1972, an important antidiscrimination mandate. She has now shifted her gaze to disability law.

The passage of the Americans with Disabilities Act (ADA) in 1990 led to significant improvements in terms of access to public services and societal understanding of disability. Yet, there have been some drawbacks when considering the recourses for people with disabilities to seek relief under its provisions.

“One of the choices Congress made in passing the ADA was to give private citizens the chance to pursue their own justice,” Tani says, referencing the private lawsuits that the ADA authorizes. Unfortunately, a public narrative has emerged of people taking advantage of the system, whether lawyers or litigants.

Tani believes that legal efforts to combat discrimination and stigma are not enough without policies that provide basic social support. “Equality doesn’t just mean being able to access a restaurant or a shopping mall,” Tani says. “It means having social supports in place that give everyone the opportunity to thrive.”

Tani recently partnered with Penn Law Professor Jasmine Harris and the University of Pennsylvania Law Review to present “The Disability Frame: Opportunities, Costs, and Constraints in the Broad Struggle for Inclusion.” The two-day online symposium convened a wide range of scholars to spark discussion on the legal concept of disability.

“The word ‘disability’ is being stretched in a lot of ways in advocacy and policymaking circles,” Tani says. “The point of the conference was to bring together people who are thinking about disability in a lot of contexts and to discuss what opportunities or challenges this presents for people.”

Tani and Harris designed the symposium around what they call the “disability frame”—the invocation of disability to achieve a particular goal in a context where that framing is either not obvious or not the only choice.

“For example,” Tani says, “some people who were anti-masking during the pandemic attempted to marshal the power of disability law to claim that mask mandates were a form of discrimination. Similarly, pro-masking advocates claimed that children who are immunocompromised would be discriminated against on the basis of disability if schools were not allowed to require masks.”

While Tani sees some value in broad applications of the “disability frame,” she is cautious about the expense for people who identify as disabled or who are labeled that way by society. She hopes the symposium will encourage people to use the “disability frame” with care.

Other lessons from the symposium came from individuals in academia and legal practice who identify as disabled and spoke about their paths. They shared the difficulties of navigating spaces and cultures designed for “normal” or typically functioning bodies, including finding mentors who shared their needs and could guide them from firsthand experience.

Some participants with “invisible disabilities” spoke about the power of choosing to identify as disabled after years of passing as non-disabled. “What we hear often is that identifying as disabled can be empowering, but not if others put that label on you,” Tani says. “Some scholars came to see themselves as disabled later in life, and it changed how they saw things.”

For Karen Tani, the application of legal history, legislation, and the law hold the power to help us better understand our present moment. Moreover, these fields illuminate how our future can be shaped by the past.

“What people sometimes don’t realize about historians is that we’re not just trying to understand the past,” Tani says. “We’re often looking to the future and trying to find that perspective or that wisdom that will help us be the society we want to be.”

For more on the online symposium, “The Disability Frame,” and to see Tani’s presentation, view here.