Professor Jasmine Harris Says It’s Time to Update Our Notions of Disability
“The classic symbol of disability is the wheelchair, or you think of white canes,” Harris said. “When people have a less visible disability — where, for instance, COVID and long COVID are going to fall — there’s this deep-seated distrust about accessing legal entitlements and exercising rights, primarily because of a pervasive fear of fraud that underwrites disability law.”
Harris is referring to President Biden’s proclamation last July that long COVID can qualify as a disability. She is referring as well to the U.S. Equal Employment Opportunity Commission’s (EEOC) subsequent decision to update its guidance to include symptoms like brain fog and difficulty remembering or concentrating, substantially limited respiratory functions, and chest pains as impairments that may meet the definition of disability under federal disability laws.
To qualify legally for a disability, an impairment must substantially limit one or more major life activities; having a medical diagnosis does not, without more, meet the legal definition of disability. Biden and the EEOC’s stance on something intangible like long-COVID symptoms is significant, Harris said, because it helps bolster the idea that the degree of visibility or biological proof of a disability does not track its legitimacy.
Harris brings a remarkable practice and scholarly profile to Penn Carey Law, drawing from experience in both the private and public sectors. The Yale Law alumna practiced complex commercial litigation, securities, and government investigations as a Senior Associate with WilmerHale. She also worked as a staff attorney at Advancement Project, a national civil rights organization, where she assisted grassroots advocacy campaigns to advance racial justice in education and address the school-to-prison pipeline. Prolific on the topic of disability law, Harris has been published in several law reviews and major news outlets such as the New York Times and the San Francisco Chronicle. She also serves on the board of directors of one of the largest national disability rights organizations, The Arc of the United States.
Harris’ appointment to the Penn Carey Law faculty was a milestone for the school: Harris is its second Latina tenured law professor. A recent report from the Hispanic National Bar Association found Latina law professors comprise just 1.3 percent of the nation’s law professors. Harris is a proud first-generation college and law school graduate raised in the Bronx by a Puerto Rican father and Cuban refugee mother.
Furthermore, her personal connections to disability offer a unique window into disability rights. At a young age, Harris recalls helping her parents navigate the New York City public school system on behalf of her younger sister, a wheelchair user with spina bifida, before Congress passed the Americans with Disabilities Act. Harris also credits her dyslexia with allowing her to see the social construction of disability.
“Dyslexia is, of course, an actual impairment, but it becomes ‘disabling’ when we design environments in a way that assumes everyone reads at the same pace or learns best auditorily and when we attach value or merit to speed over accuracy,” Harris said.
Harris applies these insights to her scholarship and teaching. For instance, she structures her courses with learning differences in mind and presents key concepts in multiple ways to benefit all students and anticipate their learning needs.
Harris’ research agenda considers the relationship between law and social norms. Social norms (or public attitudes), she said, can undermine even the most progressive or remedial legislation. Judges and lay juries bring their own biases and experiences to how they interpret laws and determine facts.
“The system is supposed to be the last resort, a nuclear option, because it strips individuals of their civil liberties. In practice, it’s often the first line of defense,” Harris said. Pop star Britney Spears’ widely publicized conservatorship and its subsequent end has put the practice under more scrutiny.
Harris believes three steps should be taken to alleviate some of the abuses and indignities created by conservatorships. The first is to make legal proceedings more transparent. “Sensitive information moves through the courts all the time,” she said, adding that there are ways to make properly redacted documents available. Second, data is needed at a national level. There is no standardized process of data collection at the state level including whether data is collected at all. This means that we do not have baseline information such as how many people are under conservatorships across the country, how many try to have their rights restored, and how many succeed. Finally, the public needs to be educated about disability and conservatorships. “The fact that someone has a disability doesn’t mean they’re incapable of making decisions,” Harris said. “We all make decisions with support, nondisabled people are just not accustomed to calling the assistance they receive ‘support.’ ”
When she discusses conservatorship with her classes, she asks students how they decided to enroll at Penn Carey Law. Answers invariably include discussions with family, Google research, and talking to current students.
“The decision to go to law school was a big one that had assistance, and it was ultimately your decision, but you had a process and a network you could tap into — that’s what guardianship is really taking the place of,” Harris said. The solution, she said, will be creating decision-making networks for people with disabilities without taking their civil liberties or agency in the process.
“There is a concept in disability studies known as ‘the dignity of risk,’ ” she said. “It means that there is something really dignified in having the space to make good and bad choices, and the ability to learn from them … Society often denies this dignity to people with disabilities.”
Harris said the Law School’s investment in disability research and teaching can serve as a model for other schools where disability law has not yet become a regular part of the antidiscrimination and administrative law curricula. In addition to Harris’ appointment, the University of Pennsylvania Law Review devoted its annual symposium this year to examining disability as an intellectual enterprise.
“I see tremendous power and opportunity in being able to teach at Penn and to have my students see that disability is not a niche issue. The sheer pervasiveness of disability in society (one in four adults in the U.S. has an identified disability) demands attention to it in the drafting, interpretation, and execution of the law.”