“Natural and Social Inequality: Disability and Fair Equality of

Opportunity"

In the past 40 years, disability scholars have emphasized the extent

to which disadvantages suffered by people with disabilities are the

result of social conditions inhospitable to their atypical bodies –

developing what has come to be called a ‘social model’ of disability.1

In this paper, we will argue that the contribution of social factors

to disability can play a significant role in theorizing about justice:

not in making all disability-related disadvantages ipso-facto unjust,

but rather in giving the elimination or mitigation of many of those

disadvantages higher priority in a just society. We will develop this

claim in terms of a distinction thought by some political philosophers

to determine the priority of eliminating or reducing a given

inequality. Many theorists, following Rawls, hold that the reason why,

e.g., class inequality is particularly objectionable is that

inequalities due to class background are in some important sense social

rather than natural. This, they think, explains the particular priority

1See generally, David Wasserman, et. al. “Disability and Justice” in the The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Fall 2013, http://plato.stanford.edu/entries/disability-justice/; David Wasserman et al., “Disability: Definitions, Models, Experience,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Fall 2013, 2013.

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class inequalities have as a matter of equal opportunity. We argue

that there is as yet no adequate account of this distinction; proceed

to provide one, and argue that many disability-related inequalities

are, relevantly, ‘social’, rather than ‘natural’, and therefore that

addressing them should be prioritized under equal opportunity.

1

The distinction between natural and social inequality has been salient

in much recent political philosophy. It goes back, at least, to Rawls,

who compared the morally arbitrary effects of the social lottery that

assigns us a class background with the also-arbitrary effects of the

natural lottery that assigns us the biological (genetic and non-socially

environmental) bases of our talents and abilities.2 Rawls thought that

it was obviously problematic for our fortunes to depend on which parents

or place of birth we happen to draw; and similarly problematic, if

perhaps less obviously so, for our fortunes to depend on the genetic

endowment we happen to wind up with.3

2John Rawls, A Theory of Justice, Rev. ed (Cambridge, MA: Belknap Press of Harvard University Press, 1999), 63–65.3 Problematic if our endowments are ‘within the normal range’ that allows us to be ‘fully cooperating member of society over a complete life’ and thereforewithin the scope of Rawls’s theory of justice. Ibid., 83–84; Political Liberalism, Expanded ed, Columbia Classics in Philosophy (New York: Columbia University Press, 2005), 20. Most people with disabilities, however, even if not within the normal range, will satisfy the full-cooperation condition if it is taken to refer to those fully capable of cooperation – not those who actually do cooperate. Otherwise the account would founder quickly on cases of unjust

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The obvious wrongness of socially-constituted inequality, Rawls

thought, supports a strong notion of equality of opportunity – if two

people with equivalent abilities to engage in social activity face

different prospects in society, it must be because society draws some

arbitrary and/or invidious distinction between them. To avoid this

seriously unjust sort of discrimination, careers must be open to

talents, not just at the time of hiring, but rather all the way from

birth: so that (for example) any two babies equally innately capable

of achieving any particular level of social success are equally likely

to do so, if they try.

If this is correct, it grounds a very strong sense of equality of

opportunity. Thus if, as social-modellers argue, disability status is

relevantly like class status, this Rawlsian reasoning could ground

exclusion from cooperation – if, say, women were not allowed to work, then, absurdly, there would have no claims in distributive justice. The social modelof disability claims that many disabled people are, to some extent or another,in precisely this position: though fully capable of cooperation, and thus possessed of claims in distributive justice, they are prevented, unjustly, from realizing these claims in cooperative activity. Some disabled people, of course, are not capable of cooperation under any social conditions. Rawlsians will have to address their claims in a different way. For discussion of who isso severely disabled that they ‘cannot’ cooperate in this sense; as well as the (potentially different) issue of who is so disabled that they lack Rawls’s‘moral powers’ of rationality and reasonableness , cf. Cynthia A. Stark, “How to Include the Severely Disabled in a Contractarian Theory of Justice,” Journal of Political Philosophy 15, no. 2 (2007): 127–45; Christie Hartley, “Justice for theDisabled: A Contractualist Approach,” Journal of Social Philosophy 40, no. 1 (2009): 17–36.

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very robust claims on the part of people with disabilities. 4 For it

requires far more than, mere ‘careers open to talents’. ‘Formal’

equality of opportunity in this sense requires that desirable social

position (jobs etc.) go to those most qualified for them; that factors

apart from ability to work have no effect on hiring decisions.5 Merely

formal equality of opportunity, however, takes ability at the time of

hiring as given. Rawlsian fair equality of opportunity has a longer

time horizon; requiring that people with equal natural capacity to

develop their abilities have the resources they need to do so.

‘Careers’, we might say, must be ‘open to talents’ not just at the

time careers begin; but all the way back to birth: people with

equivalent natural capacities to develop socially useful talents

4 There is an ongoing debate among philosophers and legal scholars about the extent to which disability is like class, race, and gender in various contexts, from quality-of-life assessment to anti-discrimination policy (Elizabeth Barnes, “Disability, Minority, and Difference,” Journal of Applied Philosophy 26, no. 4 (2009): 337–55; Elizabeth Barnes, “Valuing Disability, Causing Disability*,” Ethics 125, no. 1 (October 2014): 88–113; David Wasserman,“Is Disability Discrimination Different?,” in Philosophical Foundations of Discrimination Law, ed. Hellman and Moreau (Oxford: Oxford University Press, 2013).) The latter context is clearly relevant to justice. If all the inequality associated with disability, as with class, race, and gender, could be attributed to unjust discrimination, then all such inequality, if not attributable to choice or preference, would clearly violate formal or fair equality of opportunity. Without entering the debate, we will assume this is not the case, to allow for the possibility that disability could at least sometimes be a source of “natural” inequality. 5 Formal equality of opportunity, we should pause to note, itself has some bite in debates about disability. For instance, it might impugn a society where paraplegic computer programmers cannot find work, because software companies are located in buildings without elevators. That arrangement almost literally closes programming careers to a group of people with the requisite talents.

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should have equivalent opportunities to develop them. So fair equality

of opportunity goes much further than formal. For people with some

disabilities, the opportunity to develop natural capacities can

require major investments in education and training. The Individuals

with Disabilities Education Act (IDEA), for example, requires that

children with disabilities receive a “free and appropriate education.”

Although there is considerable debate over what that standard

requires, state and local governments spend a tremendous amount every

year on programs to integrate children with various disabilities into

regular classrooms, or to educate them in special facilities. The

money spent satisfying the mandate of the IDEA is not compensation for

children with disabilities, but a cost of achieving equal educational

opportunity for them.

Fair equality of opportunity in this sense is thus a demanding standard.

Meeting it would be a significant achievement in itself. But Rawls

does not think it would suffice for justice. For, he says “once we are

troubled by the influence of either social contingencies or natural

choice on the determination of distributive shares, we are bound on

reflection, to be bothered by the influence of the other”.6 So,

although we must always respect the principle that desirable social

positions be open to all under conditions of fair equality of 6 Ibid., 64.

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opportunity, we should also insure, to the extent permitted by the

fair equality principle, that these positions are arranged so that the

least-well off (a group that will overlap substantially with the least

talented) are as well-off as possible.

However, as later writers have pointed out, Rawls’s metaphor of the

social and natural lotteries must be finely tuned, if it is to support

his complex multi-layered conception of justice.7 Talent-based

inequality must be wrong for much the same sorts of reasons as class-

based inequality. But it must also be, in some sense, less pressingly

wrong, since the openness of desirable social positions to talents has

priority over other distributive concerns, and so can never be

sacrificed in order to equalize the desirability of different social

positions.

To make good on these claims, Rawls would need a more subtle

explication of the similarities and differences between natural and

social inequality than any he actually offers. As it stands, all he

says is that individuals are no more responsible for their natural

talents than for their social class. But if the problem with socially-

caused inequality is that it traces to factors for which we are not

7 E.g., Thomas Winfried Menko Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989), 161–195; Matthew Clayton, “Rawls and Natural Aristocracy,” Croatian Journal of Philosophy 1, no. 3 (November 1, 2001): 239–59.

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responsible, then naturally-caused inequality is problematic in

precisely the same way, and thus, presumably, precisely to the same

extent. There is thus no explanation here of the priority Rawls affords to

equal opportunity.8

What Rawls and his sympathizers need, then, if they are to press

‘moral arbitrariness’ arguments for their conception of distributive

justice, is some better way of drawing the distinction between natural

and social inequality; one which makes them similar enough to allow

inferences from the wrongness of class-based inequality to the

wrongness of talent-based inequality, without jeopardizing the

priority of opportunity-justice by putting these entirely on a par. 9

It is, of course, a matter of controversy whether ‘moral

arbitrariness’ considerations are central to the egalitarian concerns

8 Rawls himself takes the priority of opportunity as a sort of working supposition; for sake of simplicity –cf. e.g. ibid, 77f. We provide an argument for this supposition below, weakening it, somewhat, in the process.9 Note that it does not help, here, to identify ‘social’ inequalities as thoseundeserved inequalities that we can eliminate (via equal opportunity); and ‘natural inequalities’ as those that we can merely ameliorate (via the difference principle). For there is little reason to believe that we should, in general, eliminate undesirable inequalities before we ameliorate ineliminable inequalities. Inequalities that can only be mitigated, not eliminated, might be worse in various respects than those which can be eliminated, and might for that reason command higher priority. In fact, we will later suggest that many of the inequalities that violate fair equality ofopportunity cannot be fully eliminated. We offer this as a reason for denying that fair equality can have strict lexical priority over the difference principle. [Acknowledgment removed].

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that motivate Rawls.10 We will not attempt to resolve this long-

standing debate here. We will merely attempt to underwrite the

priority of opportunity by detailing a distinction between ‘natural’

and ‘social’ inequality that stands up to scrutiny better than any

offered so far. Using this distinction, we hope to make a case for

fair equality in the distribution of opportunity without prejudging

whether the ‘arbitrariness’ of inequality makes a decisive case for

egalitarian distribution more generally.

This, we stress, is a matter of interest to non-Rawlsians as well.

In particular, for the reasons sketched above, disability scholars

ought to be keenly interested in the prospects for morally salient

natural-social distinctions. If such a distinction can be drawn the

way Rawlsians want to draw it, prioritizing the response to social

inequality, then the social model of disability can play a critical

role in identifying practices and arrangements that contribute to

disadvantage in such a way as to make ostensibly natural inequalities

actually social. As such, the social model would tell us something

very significant about distributive justice: that many disadvantages

10 For some arguments that an argument from moral arbitrariness cannot be the core of a plausible (or plausibly Rawlsian) argument for egalitarianism; cf.Elizabeth Anderson, “What Is the Point of Equality?,” Ethics 109, no. 2 (1999): 287–337; Samuel Scheffler, “What Is Egalitarianism?,” Philosophy and Public Affairs 31, no. 1 (2003): 5–39. Anderson and Scheffler argue that, even if Rawls givessome weight to ‘moral arbitrariness conditions’, he does not regard any inequalities as unjust merely because they are arbitrary.

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due to disability are unjust, not merely as undeserved disadvantage per

se, but rather in the potentially more pressing way that class

advantage is unjust – as a violation of fair equality of opportunity.

2

So what can we say about how socially-constituted inequalities like

class structures are morally similar and dissimilar to inequalities

that are less completely grounded in social facts? Much of what has

been said about this sort of ‘natural/social’ distinction since Rawls

has been skeptical.11 Few philosophers have seriously attempted to

defend a morally significant distinction between ‘social’ and

‘natural’ inequalities.12 One notable exception is Thomas Nagel, who

addresses the issue in an unjustly neglected essay.13 His thought is

that the social/natural distinction is, ultimately, about what

societies are and are not responsible or liable for. That an inequality is

‘natural’, for Nagel, means that its history does not include society

in a way that gives society and its members responsibility for it.

11Cf. here, among other things, Kasper Lippert-Rasmussen, “Are Some Inequalities More Unequal than Others? Nature, Nurture and Equality,” Utilitas 16, no. 02 (2004): 193–219; Tim Lewens, “What Are ‘Natural Inequalities’?,” Philosophical Quarterly 60, no. 239 (2010): 264–85. 12This is somewhat surprising – for per above, significant elements of Rawls’swidely-accepted conception of distributive justice seem to depend on the tenability of this distinction. Some authors, notably Thomas Pogge (op. cit.), accept the distinction between natural and social inequality but deny that it grounds any special priority for equality of opportunity.13“Justice and Nature,” Oxford Journal of Legal Studies 17, no. 2 (1997): 303–21.

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This sense of ‘responsibility’, it is important to note, is backward-

looking—to be responsible for something in this sense is to bear a

relation to it of the sort that could warrant blame, praise, or other

reactive attitudes.14 Paradigmatically (but perhaps not exclusively),

this sort of responsibility relation comes from some kind of causal

connection between the responsible agent and the thing it is responsible

for – I am responsible for the destruction of your fence because I ran

my car into it, causing it to be destroyed. Responsibility in this

backward-looking sense can, but need not, give rise to obligations, or

‘responsibilities’ (now using the term in a forward-looking sense) –

to, e.g., fix the fence. Nagel’s claims about ‘social’ inequalities is

that they can be attributed to society in a manner that gives society

(backward-looking) responsibility for bringing them about and

therefore (forward-looking) responsibilities or obligations to

eliminate and/or ameliorate them.

Nagel’s account thus promises to distinguish natural from social

inequality in a manner that explains why social inequalities are more

seriously unjust than natural inequalities. To do so, it has to (a)

distinguish those inequalities society is responsible for from those

14 Could warrant because additional conditions would have to be met – e.g., thatthe act in questions is morally wrong or bad (for blame); and that the actor is the right sort of object for attitudes of the relevant kind. The responsibility relation in question can obtain even when these additional conditions fail.

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inequalities it is not responsible for; and (b) explain why this

responsibility gives society especially forceful obligations with

respect to these inequalities.

Nagel does not say much about (b); but it is plausible enough in

itself that it should be taken seriously. For in general, we ought to

prioritize our response to situations we are responsible for over our

response to situations for which we are not responsible – the

negligent driver should pay the owner of the damaged fence rather than

give the same amount to much needier others; the host of the pool

party should rescue the guest who is drowning in his own pool rather

than someone drowning in his neighbor’s, and so on. Now, Nagel seems

to suggest that if society is not responsible for an inequality then

it need do nothing about it. This, it seems to us, is an implausibly

strong claim; some of our duties of justice, after all, are duties to

help those we have no prior connection to. But this strong claim is

not needed for the purposes of explaining the special import of social

inequalities; these may be especially important relative to natural

inequalities even if those inequalities are important too. And it does

seem that responsibility for an inequality can, at least, give it

especial importance for the choices of the responsible agent.

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Nagel’s discussion of (a) – of which inequalities society is in fact

responsible for -- is more extensive, and less plausible. 15 Nagel

proceeds negatively here, giving criterion for saying that an

inequality is non-social, or natural; this requires —

“1. that there is a variable natural property of individuals what plays a significant causal role in the generation through social institutions of outcomes which differ substantially in value for those individuals,

2. that the institutions not aim to produce the differential resultsbut have an independent and legitimate purpose,

3. that to achieve that purpose without generating such differences would be significantly more difficult or costly.”

Much as we are attracted to Nagel’s way of posing questions about

which inequalities are natural and which social; we find serious

problems with this formula for answering those questions – problems

that manifest especially vividly when we consider the application of

these conditions to inequalities due to disability.

Nagel’s conditions 2 and 3 are particularly troubling from a

disability perspective. So, for instance, many of the physical

15 Re (a), Nagel seems to retreat in the 1997 essay from his earlier views on the scope of societal responsibility for inequality. For the distinction he draws there to do any moral work, he would for instance have to reject what heearlier affirmed, that: “with regard to income, wealth, social position, health, education, and perhaps other things, it is essential that the society should be regarded by its members as responsible for how things are, if different feasible policies and institutions would result in their being different.” Thomas Nagel, Equality and Partiality (New York: Oxford University Press,1991), 99–100. The conditions for societal responsibility we defend later are intermediate between the position of 1991 Nagel and the position of 1997 Nagel.

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structures and social practices that exclude people with disabilities

will (per 2) seem to have an independent and possibly legitimate

purpose -- buildings with stairs but no ramps were not designed to

keep out people in wheelchairs. But, plausibly, they were designed in

unjust neglect of the interest of people with disabilities in

participating in the activities those building housed. And that

neglect complicates the question of whether the purpose was actually

legitimate in context. Construction is clearly a legitimate social

activity; constructing buildings that exclude parts of the population

is arguably not. Imagine a public building containing restrooms only

for men, which would effectively exclude women from jobs and extended

stays. So the notion of legitimacy that figures in Nagel’s ‘2’ may

need to incorporate a notion of adequate inclusion – a notion which,

we might worry, will have to rely on the very notion of equality of

opportunity that Nagel’s account should explain.

Something similar might be said for 3---the de facto exclusion of

some parts of the population may also affect the assessment of the

cost of modifying those structures and practices. If deliberate

exclusion had occurred, that question would not even need to be

addressed. The question may also be irrelevant if the exclusionary

effect was due to gross neglect; at the very least, such neglect would

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affect how significant the costs would have to be to remove society’s

obligation to modify them. This leads to the deeper problem with 2 and

3 –properly understood, they seem to require a partial account, if not

a full theory, of justice. So, 2 begs the question of what counts as a

legitimate institutional purpose, and 3 may beg the question of what

is a significant difficulty or cost.

Perhaps, however, this problem could be solved – perhaps, for

instance, the account of justice needed to define ‘legitimacy’ of

purpose and ‘significant’ costs can be provided independently of the

judgments about justice 1-3 are meant to warrant. Even so, 1-3 seem

problematic as stated. They are supposed to be an account of the

condition under which society is not responsible for an inequality, in a

‘backwards-looking’ sense of responsibility. But as such, they are

quite puzzling. They basically say that society is not responsible for

any of the collateral effects of otherwise-permissible projects it

pursues; so long as it is not responsible for every factor that makes

those affected subject to the effects in question, and it would have

been very difficult or costly to avoid those effects.

It is not at all clear why we should accept this rather impoverished

conception of collateral responsibility. Private individuals and

corporations are sometimes held responsible for the collateral damage

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caused by fully justifiable actions on their part. Thus, in the

classic case of Reynolds v. Lake Eire Transportation Co., the court held that

Lake Erie Co. had to compensate Reynolds for the damage caused to his

dock by its justifiable effort to prevent its ship from being swept

away in a storm.16 This result accords with common sense. But Nagel’s

test, adapted to private action, would absolve Lake Erie of

responsibility: the physical vulnerability of Reynold’s dock played a

causal role in its being damaged by Lake Erie’s action, which was not

intended to damage it, and could not have avoided damaging it without

the loss of its ship (and possibly the lives of the crew). Clearly,

however, Lake Erie was responsible in both a backward and forward-

looking sense for the damage to the dock.

Lake Erie, we emphasize, owed Reynolds compensation not because of

his badly off state – we have no idea if the damage caused him serious

economic harm – but rather because of its responsibility for the

damage. In this case and others, the duties arising from backward-

looking responsibility appear to be more stringent and determinate

than those we have to the worst off: for example, to the very badly-

off individuals born with the incurable, debilitating, fatal genetic

condition Nagel imagines as a paradigm case of ‘non-social’

disadvantage. We did not contribute to the plight of those suffering 16 109 Minn. 456, 124 N.W. 221, 1910

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from this condition, and certainly do not benefit from it. Therefore

it is not our responsibility, in the backward looking sense, even if we would

have some obligations or ‘forward-looking’ responsibility for it under

(for example) the Rawlsian difference principle. Although it might

well be unjust if we failed to devote any research to curing or

mitigating the effects of the genetic condition, it would be unjust

under the less stringent difference principle. In contrast, Lake Erie

owed Reynolds the cost of fixing the damages to his dock, and that

obligation took priority over any general duties Lake Erie had to help

the worst off in its employ or in its community. If we had caused the

genetic condition, our responsibility would be more like this:

specific, and stringent.

3

So Nagel’s attempt to distinguish social inequalities from natural

inequalities faces very serious challenges. However, there is some

reason to think that Nagel is asking the right questions about this

distinction; even if he does not give the right answers. That is to

say, he may have made important progress on the concept of a natural

inequality even if he offers an inadequate conception of which

inequalities are in fact natural. ‘Natural’ inequality, for Nagel, is

defined as that inequality for which society is not responsible by 16

virtue of previous actions and policies; ‘social’ inequality is that

inequality for which it is. Nagel fails to give plausible criterion

for determining the scope of societal responsibility. But this, it

seems, is something for which we should want criteria. For, as we said

above, it does seem right that, in general, we ought to resolve

problems for which we are responsible before we address problems for

which we are not responsible, even if justice – Rawlsian justice in

particular -- requires that we address both. Thus it seems highly

plausible that, insofar as inequality is morally problematic, society

ought to redress those inequalities it shares responsibility for

before it addresses inequalities for which it is not responsible.

Suppose, then, that the question we ought to ask, when we ask

whether an inequality is social or natural, is Nagel’s question: “is

society responsible for this inequality?”. How should we go about

giving an answer to this question; given that we shouldn’t give

Nagel’s? Nagel assumes that society is not responsible for the

collateral effects of prima facie legitimate projects so long as it

has not created all of the conditions that make it the case that the

projects have these collateral effects and if it would be difficult or

costly to avoid those effects. But, we have argued, Nagel is mistaken.

Society can be responsible for collateral costs of permissible

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projects. Is there something more plausible we can say about when it

is? In answering this question, it will be helpful to think, more

generally, about whether, when, and to what extent society has

backward-looking responsibility for the consequences of its

permissible projects.

Putting the question in these terms may move us toward an even more

“denatured” account of the distinction between the natural and social

inequalities. What matters for societal responsibility, we will

suggest, is not whether a property that plays a causal role in the

creation of the inequality is biological but whether and how previous

societal or state action contributed to the disadvantages associated

with a property.

Indeed, some properties that are clearly not ‘biological’ at all

might yet be outside the scope of a given society’s backward-looking

responsibility – at least in principle if not, perhaps, very often in

practice. ‘Society’, used here in a Rawlsian sense, refers to a

political community constituted by a basic structure of legal and

political institutions; not every social practice or institutions is

part of ‘society’ in this sense. Some ‘socially’ constructed

disadvantages, then, may not be the responsibility of ‘society’.

Children from some traditional communities and subcultures, from the

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Amish to the Satmar Hasidim, often face serious disadvantages as a

result of growing up with rigidly defined gender roles or without

access to modern technologies. Some maintain that, assuming basic

‘rights of exit’ in adulthood, the resulting inequalities of

opportunity do not in themselves make the surrounding society unjust.17

Put in our Nagelian terms, this would be to say that in such cases,

although the children do not consent to their disadvantages, it is not

‘society’ that is responsible for them, but rather the Amish or Satmar

as social subgroups. We do not mean to accept this concept of

liberalism,; but only to point out that it shows how one could

maintain that an inequality is, though ‘social’ in a causal-historical

sense, not ‘society’s responsibility’ in the way that matters to

justice.

17 William A. Galston, “Two Concepts of Liberalism,” Ethics 105, no. 3 (April 1, 1995): 533f, discusssing the Amish. The exclusively Satmar community of KiryasJoel in upstate New York came to the attention of the U.S. Supreme Court afterthe New York legislature created a public school district within its boundaries, which was used only for special education, attended only by Satmarchildren, and overseen by an almost-entirely Satmar school board. Although theCourt ruled that the school district arrangements were unconstitutional, commentators have noted that no one even challenged the constitutionality of the state-recognized municipality itself, in which the children not receiving special education at the "public school" all attended Satmar private schools in sex-segregated classrooms with separate curricula, receiving a strict religious education, and a highly insular upbringing with little access to modern technology or exposure to the outside world. Ironically, the case arose from the Satmar’s attempt to provide culturally appropriate special education for their children with learning and other disabilities, itself a matter of fair equality of opportunity. Nomi M. Stolzenberg, “Board of Education of Kiryas Joel Village School District v. Grumet: a Religious Group’s Quest for it Own Public School” in Griffin ed., Law and religion: cases in context. Aspen Publishers, 2010.

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Conversely, society may well have responsibility for the direct

adverse effects of some broadly ‘biological’ properties. Society does

not cause people to have Nagel’s incurable genetic condition. It may

yet be responsible for the disadvantage this condition creates,

however, if it is relevantly responsible for the fact that it is incurable. If

this incurability reflects a default on societal obligations; then

society is, plausibly, responsible for the adverse consequences of

this default, including any resulting inequalities Society might, for

instance, simply have an obligation to devote resources to curing all

serious diseases. In that case, society may be responsible for not

working to cure the condition; and therefore, for the disadvantage of

those who suffer from it (discounted by the probability of finding a

cure with such a research investment). Or, society might not have such

a general responsibility (or not have it on grounds independent of

those presently under question); but might have a responsibility to

distribute research resources fairly among disease patient populations. In

that case, if society devotes substantial resources to one genetic

condition then it should devote resources to another; if it does not do

so, it arguably does something wrong, and bears responsibility for the

consequences.18

18 Whether differential funding is justified may depend on the prevalence and severity of the disease; there is an ongoing debate on the relevance and weight of these factors, e.g., Niklas Juth, "For the Sake of Justice: Should We Prioritize Rare Diseases?." Health Care Analysis (2014): 1-20.

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In fact, plausible claims can be made that actual societies are

responsible in a backward-looking way for the disadvantages

attributable to their differential funding of similar diseases.

Advocates who protested the U.S. government's failure to adequately

fund HIV research, or research on "orphan diseases" -- diseases too

unprofitable for the pharmaceutical industry to adopt-- were not

merely claiming that the government was deficient in humanitarian

concern. Nor were they claiming that it failed to give people with

those diseases the priority they warranted as among the worst off

members of society. They were claiming a more serious injustice -- one

which we will later characterize as the denial of fair equality of

opportunity.

Nagel also overlooks the more obvious and direct social

contributions to, and societal responsibility for, the less fanciful

conditions he describes as the "real analogues" of his genetic

condition:

Some people suffer from congenital handicaps, mental and physical, which are not only burdens in themselves, but affect the capacity to gain benefits through social interaction. Others suffer from expensive diseases, like kidney failure, that requireexpensive treatment. I do not think society had the same kind of responsibility, under justice, with respect to those inequalitiesthan it has with respect to others that are socially caused, straightforward humanitarian concern for the welfare of those afflicted will not be undermined by the fact that nature is

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responsible for their disadvantage, but the kinds of deontological judgment of justice that take precedence over the general welfare may be (315; emphasis in text).

The “social model” of disability can serve as an important

corrective for Nagel's failure to recognize that the disadvantages of

many physical and mental impairments are socially caused as well, and

thus take precedence over concerns for the general welfare. Without

denying that some of these disabilities can be "burdens in themselves"

-- some cause pain, discomfort, disruption, or broader dysfunction –

the extent which they "affect the capacity to benefit from social

interaction" depends heavily on physical structures and social

practices. As noted in the previous section, these structures and

practices usually had or have a legitimate purpose, were not

constructed or adopted to exclude people with disabilities, and might

be significantly costly or difficult to modify to include those

people. Our point is not that all such structures and practices are

unjust -- it is not possible to eliminate all adverse effects they

have on the capacity to benefit from social interaction, and beyond

some point it may be unjust to attempt to do so. What we are arguing,

informed by the social model of disability, is that 1) any plausible

distinction between natural and social inequalities cannot treat such

differential opportunity to benefit as entirely natural and 2) that to

the extent this difference should be regarded as social, reducing it

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has higher priority, as a matter of justice, than improving the

condition of the worst off in a society.

To make this case, we will build on the Nagelian idea that society

has special obligations to ameliorate inequalities for which it has

backward-looking responsibility. We hope, however, to develop this

idea in a more plausible way than Nagel did -- taking into account the

fact that societies, like other agents, are sometimes responsible for

collateral damage produced in pursuit of permissible projects.

Nagel, to repeat, claims that society is not responsible for an

inequality if it is caused, somewhere down the line, by a natural

property; and caused in such a way that society cannot prevent that

property from causing that inequality without significantly

sacrificing its ability to achieve other legitimate aims. As a

necessary condition for societal responsibility, we have argued, this

is in some ways too permissive; in others, too stringent. Contra

Nagel’s condition (1), societies can both have responsibility for

inequalities resulting from biological properties and lack

responsibility for inequalities that are ‘social’ all the way down, if

the ‘society’ in question is not the source of the relevant social

facts. Contra Nagel’s conditions (2) and (3); society can have

responsibility for inequalities that cannot be precluded without

23

significant sacrifices – sometimes, the avoidance of such sacrifices

would amount to wrongfully benefiting some at the expense of others.

In place of Nagel’s three conditions for society to deny backwards-

looking responsibility for an inequality, then, we offer the following

four-fold condition for concluding that society must accept that

responsibility -- and therefore prioritize response as a matter of

equality of opportunity.

(4) A society is responsible for an inequality if and only if:

(4a) that inequality results from independent rights-

violations or independently unjust treatment (of those

disadvantaged), for which that society is responsible; OR

(4b) that inequality resulted from societal policies and

practices which make some worse off in order to make others

better-off; OR

(4c) that inequality resulted from societal policies and

practices which, in the course of making some better off,

foreseeably make others, who have some claim to a justification

of those policies, worse-off; AND

24

(4d) no other agent, and especially not the disadvantaged

individual or group, has the sort of responsibility for the

disadvantage that precludes societal responsibility.

Before discussing the rationale for these conditions, and their

relevance for equality of opportunity, we want to explain several key

terms they employ. In (4a), the rights violation or injustice must be

independent in the sense that it does not consist in causing the

inequality in question. Otherwise, there would be an obvious problem

of circularity. Both (4b) and (4c) will ultimately require an account

of which policies and practices are relevantly ‘societal’; per the

discussion of the Amish, above, we leave that question aside here. The

distinction between (4b) and (4c) is between causing an inequality as

a means or as a side-effect – we believe that this distinction

sometimes matters for responsibility, although society is often

responsible for effects that fall on both sides of it. We are, of

course, well aware of the continuing debate in moral philosophy over

how this distinction should be drawn, and why or whether it matters.

We will not enter this debate, but merely state our belief that,

despite these unresolved questions, the distinction is intuitively

clear and morally resonant. Although society or the state will always

be responsible for intended effects, it will be responsible for some

25

but not all unintended ones. The foreseeability condition of (4c),

provides an (abstract, preliminary) way of saying why some side-

effects do not matter. Finally, we will sometimes want to say that

responsibility we might otherwise apportion to society is not ‘up for

grabs’; that in some cases, another agent’s responsibility for a

disadvantage precludes the assignment of responsibility to society –

hence 4d.

It is important, further, to note that, like Nagel's conditions,

these conditions refer to "inequality" rather than "disadvantage." A

progressive income tax would disadvantage the highest earners compared

to their previous position, but it would reduce rather than increase

inequality. As it stands, however, these conditions apply to

inequalities regardless of whether they make the group or individual

on the losing end worse off than before. We leave open the possibility

of inequality without disadvantage, although our discussion of the

application of these principles to disability suggests that the

inequality-producing gains of some will usually make those who do not

receive them worse off than they were before in significant respects.

These conditions, we argue, can be seen as specifications of

independently plausible claims about when we are responsible for the

effects our conduct has on others. If I voluntarily violate your

26

rights; and thereby harm you, I clearly owe you compensation. If I

voluntarily impose harms on you to make myself better off; I clearly

owe you something in return. And, albeit perhaps less clearly; if I

voluntarily make myself better off in a way that foreseeably makes you

worse off, then ceteris paribus I acquire some responsibility for your

disadvantage, even if I acted permissibly when I worsened your

condition.19

So understood, we argue, these conceptions can provide a powerful

rationale for and interpretation of the idea of fair equality of

opportunity. Intuitively, fair equality of opportunity obtains when

everyone can go as far in society as their natural talents will take

them. Put another way, fair equality of opportunity obtains just when,

for every inequality, either (i) that inequality is attributable to

something for which the parties to it are responsible (e.g., a choice

not to develop at talent); or (ii) that inequality is attributable to

something for which no one is no one responsible. If society is

responsible for any inequalities; then these conditions are not met,

and equality of opportunity is therefore absent. Nagel claims that

this is the case if all inequalities satisfy his 1-3; we claim that it

19 Suppose, for instance, that, facing a life-threatening conflagration in my upstairs apartments, I douse the fire with a great deal of water, which seeps through the floor and damages your property. Presumably I owe you restitution for damaging that property even though I did not violate your rights in causing; or use it as a ‘means’ to my ends.

27

is not the case if any inequalities satisfy any of the disjuncts of

our (4).

So our conditions are meant, like Nagel’s, as both a (partial)

definition of and rationale for equality of opportunity.20 It is

critical, therefore, that these conditions capture our considered

convictions about the relevance of various disadvantages to equality

of opportunity. We believe that they do. To see this, consider the

core, classic cases of class disadvantage – cases where people are

less likely to succeed than those with similar genetic endowments

because they lack the social advantages (educational resources,

connections) that others possess. Some aspects of the class structure

reflect obviously unjust prior treatment; witness the legacy of

slavery. According to (4a) inequalities traceable thereto are clearly

very wrong, and must be rectified with measures intended to establish

equality of opportunity those who lost out from previous injustice and

those who have benefitted from it.

However, it is far from clear that all class or economic

inequalities are like this – that any time someone faces relative

disadvantage due to where they grew up, or who their parents are, this

20 Unlike Nagel, however, we do not claim that this ‘equality of opportunity’ is all there is to (distributive) justice; but rather only, with Rawls, that it takes priority over other kinds.

28

is because society violated someone’s rights somewhere up the line.

Consider, for instance, the sorts of economic disadvantages that come

from living in a very remote place. Some people who live in remote

places descend from populations wrongly resettled by agents of the

society the disadvantaged descendants belong to; but some do not.

Suppose, e.g., that a population was non-coercively induced to move to

the hinterlands to mine resources needed for industrial production in

the heartland. Society might under certain conditions permissibly use

them as a means to increase the size of the pie. In doing so, however,

(per 4b) society would acquire a special (forward-looking)

responsibility for them; including a special responsibility to ensure

that they had a fair opportunity to reintegrate into the heartland if

they chose. Society would then also bear special obligations to the

descendants of these miners, even after the mines are spent; and this

even though their disadvantage is a mere side effect of society’s

permissible resource-gathering project (per 4c) rather (per 4b) a

means to it.21 This, it seems, is the sort of collateral damage we can

be responsible for: the foreseeable kind, that benefits us, at the

expense of others, who live with us under common institutions that

require common justifications. 21 If it had been part of the original migration plan that the mines be workedfor generations, then the plight of the miners children would fall under (4b),even though they were not in fact serving as a means to increase national wealth.

29

One point worth stressing, in this connection, is that society can

be responsible for the disadvantage of an individual or group even if

that individual or group enjoyed some benefit from the project,

policy, or institution in question. Thus, the miners and their

children may well have gained from the increase in national

prosperity, just like their fellow citizens, but lost economic

opportunity when the mines ran out. Despite the benefits they gained,

both groups suffered a major loss of opportunity compared with the

majority population.

Inasmuch as the disjunctive sufficient condition 4a-c grounds

plausible judgments of responsibility; and therefore inequality of

opportunity; condition 4d blocks implausible judgments in

superficially similar cases. An entrepreneurial economy foreseeably

disadvantages those who take risks and lose as against those who take

no risks; or those who take risks and win. Indeed, in some sense it

disadvantages the former in order to advantage the latter. But this does

not necessarily make compensating failed entrepreneurs a high-priority

goal under 4a-4d. For, often if not always, entrepreneurs make their

gambles freely and are therefore responsible for what happens, win or

lose. That personal responsibility, (4d) says, precludes the sort of

social responsibility that could ground claims in equal opportunity.

30

Contrast factory workers with limited education, trained in mechanical

skills that had ensured a good living for generations of their

families. We would be less inclined to hold that they had assumed the

risk that new technologies or trade policies would render their skills

obsolete or drastically reduce the demand for them. More plausibly,

society itself has some responsibility for leading them to believe

that developing these skills rather than others was a safe,

conservative career choice. The workers, therefore, have stronger

equal-opportunity claims than the entrepreneurs. They may also have a

stronger claim that unemployed philosophy PhDs, who knew, or should

have known when they entered graduate schools that their odds for

permanent employment in philosophy were very slim.

4

This responsibility-based account of the distinction between

‘natural and social’, we want to argue now, can be used to further

enrich our understanding of the requirements of, and moral basis for,

fair equality of opportunity; and in the process help us to see how

these concepts can function in the political philosophy of disability.

Rawls sketched the idea of fair equality of opportunity as follows:

31

[A]ssuming there is a distribution of natural assets, those who are at the same level of talent and ability, and who have the same willingness to use them, should have the same prospects of success regardless of their place in the social system, that is, irrespective of the income class into which they are born. In allsectors of society, there should be roughly equal prospects of culture and achievement for everyone similarly motivated and endowed.22

As Rawls notes, when fair equality of opportunity is achieved, the

‘social lottery’ has no effects on our fortunes in life. Like Nagel,

we take equal opportunity to require that our social fortunes not be

determined by factors for which society itself is responsible.23

Because Rawls focuses on variation within the ‘normal range’; he

emphasizes class background as the primary social contingency. Our

more detailed account of ‘social’ inequalities warrants expanding the

range of inequalities covered under fair equality of opportunity to

include many associated with disability as well. In particular, we

argue now, the notion of fair equality of opportunity needs to be

expanded in several ways to reflect post-Rawlsian insights from the

social model of disability.

First, "natural assets" are to a great extent determined by

socially-infused environmental factors ranging from uterine chemistry

22 TJ (rev), 63.23 Further, like Nagel, we do not mean to offer this claim about the nature of‘social’ inequalities as an interpretation of Rawls. Nevertheless, we do believe that this claim is part of the best explication of the considered convictions that Rawls elicits concerning the priority of equal opportunity. We thank an anonymous reviewer for helping us to clarify this matter.

32

to early education. Second, even taking “natural assets” as fixed,

which of these are valued as talents or abilities depends heavily on

social context – e.g., technological development and market demand.24

In a post-industrial society, the strength and coordination needed for

skilled blue-collar labor may come to be seen as strictly avocational

assets, good for hobbies but largly irrelevant in assessing whether

individuals endowed with them are at the same level of productive

talent and employable ability as others. Third, many of the

‘opportunities’ disabled people are concerned with attach not to

‘career’, in the conventional sense, but rather to less formal sorts

of social roles. Blind people should have the ‘opportunity’ to do work

they are otherwise qualified to do, but they should also have the

opportunity to pass through public spaces safely and efficiently, just

as sighted people do.

With these points in mind, it should be clear enough that the

barriers to the "conversion" of talent and motivation into effective

social functioning do not arise from class alone. They can also result

from physical structures and social practices that, intentionally or

not, bar the participation of people with disabilities who, with “with

24 Alexander Rosenberg, “The Political Philosophy of Biological Endowments: Some Considerations,” Social Philosophy and Policy 5, no. 01 (September 1987): 1–31; Steven R. Smith, “The Social Construction of Talent: A Defence of Justice as Reciprocity,” Journal of Political Philosophy 9, no. 1 (March 1, 2001): 19–37.

33

reasonable accommodation” can perform the essential functions of the

employment position. “25 The obstacles often result less from physical

barriers than from uncritical assumptions about the skills actually

required by the job. The talents to which careers and other goods must

be open should be individuated narrowly and carefully. In the case of

an IT career, the relevant talent is programming skill, not such skill

plus the ability to walk and climb stairs. If someone has the innate

ability to develop programming skills, but cannot, despite her best

efforts, find a way to exercise that ability, she is denied fair

equality of opportunity whether the obstacles she faces come from the

class structure or from the structure of the built environment. But

not all cases will be so clear cut. The difficulty of determining what

skills a job requires may as formidable as the difficulties of

deciding how much and what kind of accommodation are reasonable.`

It’s important to note that achieving fair equality of opportunity,

so understood, may be costly. This is clear from Rawls' original

description. Even in a society far more just than our own, children

with similar "natural assets" will be born into families with

different incomes, and more important, different capacities to

cultivate those "natural assets." Fishkin and others have pointed out

the inherent tension between equality of opportunity and the freedom 25 Americans with Disabilities Act (2008) Subtitle I, Sec. 12111 (8).

34

of parents differing greatly in natural and social assets to nurture

their own children.26 Free public education is intended to reduce the

resulting disparities in children's opportunities, but it can only do

so imperfectly (to put it mildly) and it is, of course, very

expensive. Similarly, some disability scholars and advocates argue

that because it will often be very costly to reduce inequality of

opportunity by making physical and technological environments more

hospitable to people with various disabilities, it is fairer and more

effective to impose those costs on the state rather than, as under

present law, on private individuals.27

Still, because FEO can never be fully achieved, and because even its

partial achievement can be very expensive, FEO cannot enjoy strict

lexical priority over redistribution to improve the position of the

worst-off. Such priority would inevitably mean that there would be

nothing left over to redistribute, as social resources were consumed

by the endless demands of FEO despite the diminishing increases in

opportunity. We recognize the conceptual and practical difficulties in

according non-lexical priority. But these are hardly unique to our

26 James S. Fishkin, Justice, Equal Opportunity, and the Family (Yale University Press, 1983).27 Scott A. Moss and Daniel A. Malin. "Public Funding for Disability Accommodations: A Rational Solution to Rational Discrimination and the Disabilities of the ADA." Harv. CR-CLL Rev. 33 (1998): 197; Sue A. Krenek "Beyond Reasonable Accommodation." Tex. L. Rev. 72 (1993): 1969.

35

understanding of FEO; rather, they arise on any plausible view that

gives priority to some forms of (re)distribution over others. Suppose

we think that a kind of ‘corrective’ justice, related to righting past

wrongs, takes priority over the purely present-oriented concerns of

‘distributive’ justice. It would remain implausible to assert that not

one penny can be devoted to enhancing opportunity or helping the

presently needy until all reparations are paid for past injustice. Or,

to take another, more Rawlsian example, consider the priority of the

principle requiring protection of equal liberties to other

distributive concerns. Arguably, there is always a way to spend more

to protect civil liberties better; given human nature the threat of

(e.g.) police corruption always looms, and there is always something

more to be done to defend against it. The priority of liberty cannot,

plausibly, be taken to mean that not one penny can be spent on equal

opportunity, or improving the lot of the least-well-off, until there

is no way to use that money to achieve even the tiniest gain in terms

of liberty. So, there must be some sense to be made of the idea that

one distributive principle has significant but non-absolute priority

over others; our claim is that opportunity has that kind of priority,

whatever exactly it turns out to be.

36

5

It is one thing to say that in principle, socially constructed

disadvantage accruing to disability is on a moral par with

disadvantage due to class background. It is another to show how this

analogy advances our understanding of the political philosophy of

disability. In conclusion, we’d like to say something about how this

could go.

Suppose, as seems plausible, that at least sometimes society has

something to gain by not including the disabled in some valuable

social benefit, even though nobody intends this for its own sake or as

a means to some other end. Suppose, for instance, that a city has

recently put in street signs, which it previously lacked, but that it

would be prohibitively expensive to provide with Braille

transcriptions. (The signs might have to be at a lower level to be

read by blind pedestrians than seen by sighted drivers, so two sets

might be required on every corner.) The city's action would not only

deny the benefit of better directions to blind people, it would

disadvantage them relative to the previous situation. It now would be

comparatively harder for them than for sighted people to understand

and move about a city in which both groups had previously had to

request oral directions. Their inequality in mobility and social

37

participation would be further increased by likely changes in social

practices to reflect the expectation that most people could find out

more readily where they were going.

This case, it seems, could pass Nagel’s three tests, absolving the

city of responsibility. After all, facilitating navigation is a

legitimate social purpose, and providing it to the blind would be

significantly costly. Further, perhaps the story could be told so that

other priorities of justice were so pressing that it was not merely

permissible but just for the city to produce a physical environment that

is, in this way, inhospitable to the blind. Nagel would have us see

this case as one where we permissibly fail to remedy an inequality

produced, ultimately, by nature. But we see it instead as a case where

some make themselves better off at the expense of others. Those who

make themselves better off are to some extent responsible for any

increased inequality, and resulting disadvantages, for those who do

not share in the benefits, even though they do not act impermissibly

in producing or benefitting from this inequality.28 The former, 28 Alert readers may notice that we have been somewhat ambiguous throughout concerning the baseline against which we measure someone making themselves ‘better off’ or ‘worse off’. This is intentional, as the issues involved in specifying this more fully go beyond what we can discuss here. For the sake ofthis example, we can suppose that the sighted make themselves better off relative to several plausible baselines; because (a) they are doing better than would be without the policy; (b) better than they were before; further wecan assume that the pre-change distribution was just, and would have remained just had the change not been made; so that (c) our sighted people are doing better off than they have claims of justice to be.

38

therefore, must mitigate the disadvantage to the latter and/or

compensate them for it, if at all possible, in opportunity-enhancing

ways – say, by financial support to purchase electronic aids; or to

acquire and care for service animals.29

These measures would be warranted, we emphasize not as a means of

helping people who were, or had been made, among the worst off. Even

with limited access to public signage, many or most blind people might

be far from the worst off on balance. Rather, those measures would be

warranted to ameliorate, to the extent possible, the inequalities

created by otherwise just social decisions. Such amelioration would,

on the broadly Rawlsian view defended here, have priority over

measures to raise the position of the worst off; it would not be

subject to the vagaries of the Difference Principle. The satisfaction

of FEO may not only fail to benefit the worst-off; it is likely to

increase the inequality between them and everyone else. This much

29 Here we agree with Cynthia Stark, and against some luck-egalitarians, that equality of opportunity properly understood is not satisfied when those deniedaccess to desirable social positions are compensated in other ways. As Stark points out, this would make equality of opportunity consistent with a kind of ‘caste society’, where some groups not intrinsically unqualified for given positions are nonetheless unable to compete for them. We share Stark’s view that such a society would be unjust even if the excluded group were generally as well off as members of unexcluded groups. As Stark also emphasizes, this possibility is especially important for discussions of disability, where some (including the aforementioned luck-egalitarians) seem to think disabled peopleshould be excluded-but-compensated in precisely this sort of way. “Luck, Opportunity and Disability,” Critical Review of International Social and Political Philosophy 16,no. 3 (2013): 383–402.

39

follows from the priority of equal opportunity to the difference

principle.

It is worth noting, in this connection, that under our proposed

conditions, it may be that FEO is not violated by inequalities that

cause no actual disadvantage to those who receive less or no benefit –

for in that case no one is made ’worse off’ as a means to, or

foreseeable side effect of, making others ‘better off’. This appears

to be what Nagel had in mind when he decried, as “a mindless abuse of

the ideal of equality” (315, n. 9) a ban on free-standing pay-toilets

in Manhattan that were too small to accommodate wheelchair users.

However, his apparent assumption that wheelchair users would suffer no

disadvantage (apart from envy) reflects a failure of imagination. The

inability of wheelchair users to access the newly available toilets

might well have made them worse off in any number of ways. Nearby

public facilities like hotels and restaurants that previously allowed

pedestrian access to their own bathrooms might have ceased to do so in

the belief that access was no longer needed. Outings among ambulatory

and wheelchair-using participants might have become more difficult and

awkward. Only the former could avail themselves of outdoor toilets

while the latter had to search for indoor bathrooms – a situation with

40

disconcerting similarities to that once faced by racially-mixed groups

in segregated cities.30

Indeed we suspect that in a modern interconnected society, “mere”

inequalities will usually lead to significant disadvantages. Many of

the inequalities that raise issues of FEO will be positional,

involving competition. A blind IT technician already faces inequality

in job and earning prospects due to of lack of sight, but her

competitive disadvantage with respect to equally skilled sighted

programmers is increased by lacking any access to the new medium of

communication. Non-positional inequalities may also lead, indirectly,

to disadvantage. In a city that previously lacked street signs, blind

people already had unequal access because they could see neither

orienting landmarks nor the police from whom one got directions. That

inequality can perhaps be regarded as natural. But, as we noted, it

would be increased by the addition of non-braille signs. Even if

policemen and locals were no less willing to give directions to blind

people, and could give them better directions because of the signs,

the difference in travel time between blind and sighted pedestrians

will almost certainly increase. And that may well place blind

30This is not to defend the ban, per se – we do not know enough about the relevant circumstances -- but merely to note, contra Nagel, that it need not have been “mindless.”

41

pedestrians at an absolute disadvantage, because of changing business

and social expectations about travel time and punctuality.

Consider, in this connection, some claims made by people with

disabilities excluded from the benefits of novel electronic

communications technologies. The introduction of the telephone (before

the advent of TTY) substantially increased inequality of opportunity

for deaf people. Previously, when business communication had been face

to face or in writing, deaf people had at least a limited opportunity

to participate; they had no such opportunity in phone conversations.

More recently, the rapid development of the Web, and of social media,

has often left blind people significantly disadvantaged. The same

technologies that facilitated communication among sighted people

initially excluded blind people, reducing the opportunities for

participation they had previously had. When the National Federation of

the Blind sued Microsoft, Apple, and Google, to make their web

programs accessible to blind people, they claimed discrimination, not

inadequate provision for the worst off. These claims are prima facie

plausible, on our view; the benefit we (sighted) people take from

these technologies gives society a special responsibility to those who

disadvantaged by not sharing it.

42

This incipient conception of the relevance of FEO for disability

contrasts favorably with prominent alternative conceptions. Consider

Norman Daniels’ view of the role of workplace accommodation for people

with disabilities in securing FEO. Daniels holds that disability or

disease (may) prevent an individual from enjoying FEO. Famously, his

argument rests on the claim that FEO requires species-typical

functioning, defined in Christopher Boorse's terms as the absence of

disease, construed in turn as a “reduction”, in some body part or

other, “of one or more functional abilities below typical efficacy, or

limitation on functional ability caused by environmental agents”.31 Our

view differs from Daniels in several, we think plausible, ways:

First, we do not regard diseases and disabilities as denying FEO

simply because they substantially limit the individual's opportunity

range relative to species normal. What matters is whether these

limitations can be attributed to societal projects, policies, or

institutions. Someone born with profound, difficult-to-cure physical

and mental impairments has no FEO complaint if the disadvantages

deriving from those impairments are not attributable to societal

action -- if they do not satisfy one of the three conditions set out

31Christopher Boorse, “A Rebuttal on Health,” in What Is Disease?, ed. James M. Humber and Robert F. Almeder (Humana Press, 1997), 7–8.

43

above. In some cases they will, while in others --Nagel’s gene, as he

describes it – they will not.32

Second, Daniels sees health-care as the first line of response to a

disability-based denial of FEO; workplace accommodations are merely a

fallback:

[W]e make up in the employment sector what we cannot quite accomplish in the health care sector . . . . We put those with disability closer to where they would have been if they had no disability. Since we cannot make this correction in the sphere ofhealth care, we can do the next best thing in employment. Of course, this is only rough justice, but it recognizes the specialimportance of work opportunities in our lives.33

Although we have no categorical objection to medical correction or

other health-care interventions to preserve or restore FEO, we see no

reason to presume that this is the correct response. Indeed it seems

plausible that the blind and deaf people disadvantaged by new

technologies were first and foremost entitled to adaptations in those

technologies to make them accessible. Bodily modification is invasive;

if disabled people want to be and can be accommodated without it, they

should be. If such adaptations are impossible or prohibitively

expensive, then measures to improve hearing or sight may be the best 32 This will not be the case, recall, if the incurability of the genetic condition is society’s responsibility; say because (per our 4a) society wrongly discriminates against those who suffer from it by arbitrarily underfunding it relative to others, similar conditions.33 Norman Daniels, “Mental Disabilities, Equal Opportunity, and the ADA,” in Mental Disorder, Work Disability, and the Law, ed. Richard J. Bonnie and John Monahan (University of Chicago Press, 1997), 281–98.

44

we can do. Such measures may be desirable to some deaf or blind people

for a variety of reasons, but they should not be the presumptive first

response to an FEO complaint.

The flip side of this, perhaps, is that disabled people do not

necessarily have forceful claims to medical treatment, as opposed to

workplace and other accommodation – even if they would prefer

treatment. Much depends, of course, on general questions concerning

rights to medical treatment, which we cannot address here. We have,

however, argued that, in light of the socially constructed character

of many disabilities, it is implausible to claim that the restoration

of biological normality is always required by norms of fair equality

of opportunity. This suggests that often, on a Rawlsian picture, we

can push claims to medical treatment down to the level of the

Difference Principle. If so, then whether a disabled person has a

claim to medical modification rather than environmental accommodation

will depend on cost- and benefit considerations; e.g. whether

providing medical treatment benefits the least well-off more than

other things we might do with the same resources. These empirical

questions cannot be answered here; our point is, merely, to point out

that they have different relevance on our account than on Daniels’.

45

6

Egalitarians and disability scholars both have been concerned with

conditions under which disadvantages are ‘social’ as opposed to

‘natural’. In this paper, we’ve tried to bring these discourses

together; to show how to draw a morally significant distinction

between natural and social inequalities; and then, using that

distinction, to show that some inequalities that might seem natural

are in fact social. Following Nagel, we’ve argued that the critical

distinction is not a metaphysical line between purely ‘natural’ and

purely ‘social’ causes or properties of individuals; rather, it is

between those inequalities society has brought about under certain

responsibility-creating conditions, and those it has not. Contra

Nagel, however, we have maintained that society can have

responsibility for some disadvantageous inequalities, even if it would

be costly to ameliorate them, and even if it generated them in the

pursuit of otherwise permissible projects. This includes, prominently,

projects of technological development and deployment that benefit

society on the whole but, in the process, disadvantage some people

with disabilities. In these cases, we argued, disadvantaged disabled

people have the same sorts of claims as those disadvantaged by class

background. And, we argued, these similar claims should,

46

presumptively, receive a similar response: a change, not in the

disadvantaged individuals themselves, but rather in the social

structures and technological conditions that exclude them.

Thus we have defended a view of disability injustice that is doubly

social: first, because such injustice arises from the structure of

social relations, not from biological properties of individuals alone;

second, because they should be addressed first and foremost by

modifying those structures, not by modifying individuals.

47