Generalizing Disability

Published in 1949, Joseph Tussman and Jacobus tenBroek’s article The Equal Protection of the Laws has exerted longstanding influence on subsequent Fourteenth Amendment scholarship. Insightfully, Tussman and tenBroek identified a paradox: although the very notion of equality jurisprudence is a “pledge of the protection of equal laws,” laws themselves frequently classify individuals, and “the very idea of classification is that of inequality.” Notably, classification raises two sometimes concurrent varieties of inequality: over-inclusiveness and under-inclusiveness. Of these, over-inclusiveness is a more egregious equal protection violation due to its ability to “reach out to the innocent bystander, the hapless victim of circumstance or association.” Despite this shortcoming of classification, Tussman and tenBroek objected to the process of classification only where the categories were either empirically unsustainable or based on legally proscribed characteristics. The use of classification as a method of administrating policy was not itself opposed by the authors, both of whom were distinguished civil libertarians. According to Frederick Schauer’s Profiles, Probabilities, and Stereotypes (“Profiles“), this broad and appropriate acceptance of classification is in stark contrast to current mores, where decisions based on categories and generalizations – what Tussman and tenBroek called classifications – are frequently denigrated as stereotyping, or, even worse, profiling. In response to this nowprevalent sensibility, Schauer defends the morality of using generalizations as a means of mediating modern-day life. He further argues that the use of classifications is inevitable and can also be desirable. Part I of this Review sets forth Schauer’s definitions, theses, and conclusions. Next, Part II critiques some of the assertions presented in Profiles. Finally, Part III extrapolates Schauer’s analytical framework on generalizations to employment discrimination under the Americans with Disabilities Act (“ADA”), an area not addressed in the book.