'They Keep it All Hid': The Ghettoization of Mental Disability Law and its Implications for Legal Education

Abstract

The Supreme Court has, since 1972, decided more than fifty cases involving persons with disabilities, a docket spanning virtually every aspect of constitutional and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between disability and sexually violent predator laws, and aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern disability case – finding that the due process clause is implicated in decisions related to both the nature and duration of the commitment process – it expressed surprise that there were not more disability cases brought to its attention.However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no disability cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject separate from basic constitutional materials and courses. Mental disability has been ghettoized in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in mental disability law offered only at about half of American schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training). This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability is simply not a topic taken seriously as a civil rights topic (or as a constitutional topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching disability law. It is hidden (nearly totally hidden) from the traditional school curriculum. It is not in the curriculum at many schools. It is largely invisible to students and professors alike.I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how mental disability law became a part of the school curriculum, growing out of and largely supplanting courses in psychiatry and the law (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that mental disability law can be cabined in one 2- or 3-credit course (implying that all disability can be surveyed in that period of time, in a way that school faculty would never think all tax or real estate or securities could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality of the students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any disability course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of ordinary common sense (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence.