Fordham Law Professor Concurs “Black Racial Status” Is a “Legal Disability”

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El Aemer El Mujaddid

December 6, 2019

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Professor Kimani Paul-Emile, an associate professor of law at Fordham University and associate director of its law school’s Center on Race, Law & Justice, published a 72-page report titled “Blackness is a Disability”.  

Professor Emile bottom line is being black in America is a ‘disability,’ she argues that while Africans Americans might initially spurn the  “blackness as disability” label, it can actually be a wise courtroom plan.

From my own personal research, U.S. colonial slave legislation has already recognized this fact that she has shed new light on in the context of modern disability law which derives from civil rights legislation.

Prior to the end of the Inquisition in 1769, Jews, Moors, and Negroes were frequently referred to in official documents as racas infectadas (infected races).” Source: Angola Under the Portuguese: The Myth and the Reality

For example, S.C. Negro Law 1790 is titled: The Status of the Negro, his Rights, and Disabilities. 

I think her suggestion of invoking disability law in conjunction with other civil rights private rights of action in any cause of action brought in the courts is nothing less than necessary. I interpret her method as fruitful in addressing the “white privilege” that judges provide to white defendants, white plaintiffs and white counsel in direct violation of the code of judicial conduct which in turn violates the constitutional right to procedural due process that opposes relief that Moors may seek in the courts throughout the United States.

Above and below are pages of legislation from the State of Georgia. The Legislation is title “Disabilities of Persons of Color” The South Carolina version is titled “Rights of the Negroes and his Disabilities”. These examples demonstrate Governments are well aware that legislation was used to impose disabilities on enslaved persons and their descendants.  It’s my opinion that these enactments caused African Americans to suffer from personality disorders. Additionally, the provisions that address the color of persons enslaved should fall squarely within the concept of “Skin Disorders”.

The status of the Negro as property was officially erased by his emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.”  Slaughter-House Cases, 16 Wall. 36, 70 (1873).

The status of the Negro as property was officially erased by his emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.” Slaughter-House Cases, 16 Wall. 36, 70 (1873).

Badges of slavery,” by contrast, had a somewhat looser meaning. See id. at 575–82. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina. See generally Harlan Greene et al., Slave Badges and the Slave-Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status”). In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166

“That the act of manumission confers no other right but that of freedom from the dominion of the master, and the limited liberty of locomotive; that it does not and cannot confer citizenship, nor any of the powers, civil or political, incident to citizenship; that the social and civil degradation, resulting from the taint of blood, adheres to the descendants of Ham in this country, like the poisoned tunic of Nessus; that nothing but an Act of the Assembly can purify, by the salt of its grace, the bitter fountain–the darling sea. He is associated still with the slave in this State, in some of the most humiliating incidents of his degradation–Like the slave, the free person of color is incompetent to testify against a free white citizen. He lives under, and is tried by the same Criminal Code. He has neither vote nor voice in forming the laws by which he is governed. He is not allowed to keep or carry ire-arms. He cannot preach or exhort without a special license, on pain of imprisonment, fine and corporeal punishment. He cannot be employed in mixing or vending drugs or medicines of any description. A white man is liable to a fine of five hundred dollars and imprisonment in the common jail, at the discretion of the Court, for teaching a negro to read and write; and if one negro teach another, he is punishable by fine and whipping, or fine free free or whipping, at the discretion of the Court. To employ a free person of color to set up type in a printing office, or any other labor requiring a knowledge of reading or writing, subjects the offender to a fine not exceeding one hundred dollars.”

Source: Bryan v. Walton, 14 Georgia 185 (1853).

In Lake, the court noted the long history of discrimination faced by people with disabilities, particularly those with mental disabilities, and found that Section 1985(3)’s protections against “class based invidiously discriminatory motivation[s]” could be extended to include such claimants. The history of discrimination against individuals with disabilities, while less noted than racial or sex discrimination, is no less a story of a group that has traditionally suffered not only physical barriers but the badge of inferiority emplaced by a society that often shuns their presence. PAGE 688 Despite the facts that the Thirteenth and Fourteenth Amendments were passed originally to secure the rights of a specific group, and that a particular group may have been the original beneficiary of the Amendments, it is now beyond doubt that they are applicable to all citizens. The Equal Protection Clause of the Fourteenth Amendment, which, like 42 U.S.C. Section(s) 1985(3), attacks the deprivation of “any person” of the equal protection of the laws, has been invoked to prohibit prejudicially disparate treatment on the basis of sex, alienage, handicap, poverty, corporate status, and a wide range of other nonracial characteristics.

Source: Lake v. Arnold 112 F.3d 682 (3d Cir. 1997) 

In Lake, the court noted the long history of discrimination faced by people with disabilities, particularly those with mental disabilities, and found that Section 1985(3)’s protections against “class based invidiously discriminatory motivation[s]” could be extended to include such claimants. The history of discrimination against individuals with disabilities, while less noted than racial or sex discrimination, is no less a story of a group that has traditionally suffered not only physical barriers but the badge of inferiority emplaced by a society that often shuns their presence. PAGE 688 Despite the facts that the Thirteenth and Fourteenth Amendments were passed originally to secure the rights of a specific group, and that a particular group may have been the original beneficiary of the Amendments, it is now beyond doubt that they are applicable to all citizens. The Equal Protection Clause of the Fourteenth Amendment, which, like 42 U.S.C. Section(s) 1985(3), attacks the deprivation of “any person” of the equal protection of the laws, has been invoked to prohibit prejudicially disparate treatment on the basis of sex, alienage, handicap, poverty, corporate status, and a wide range of other nonracial characteristics.

Source: Lake v. Arnold 112 F.3d 682 (3d Cir. 1997)

See B. Schwartz, From Confederation to Nation: The American Constitution 1835-1877, p. 191 (1973) (“The purpose of the act as explained by Lyman Trumbull, chairman of the Senate Judiciary Committee, in his address introducing the proposed legislation, was to carry into effect the Thirteenth Amendment by destroying the discrimination against the Negro that existed in the laws of the southern states, particularly the Black Codes enacted since emancipation”); id., at 193 (“Before the Thirteenth Amendment, slaves could not own property, and after emancipation the southern states enacted Black Codes to perpetuate this disability. This was the `incident of slavery’ which the 1866 statute was aimed at, relying for its enforcement on the Thirteenth Amendment”); 6 C. Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-1888, p. 110 (1971)