“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
2
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.
9
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.
11
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
15
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.
20
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
21
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
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