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69 Ohio St. L.J. 1089 (2008)
Reflections on Race: The Limits of Formal Equality

handle is hein.journals/ohslj69 and id is 1101 raw text is: Reflections on Race: The Limits of Formal Equality RUTH COLKER* In previous work, I have argued that the formal equality model has not been well equipped to help attain substantive equality for individuals with disabilities, because it does not correctly target who is deserving of assistance and it has not been effective in developing appropriate remedies.' I have suggested that Congress presumed under the Individuals with Disabilities Education Act that an integrated educational environment is better than a more segregated educational environment in the K-12 context, even though the available empirical data do not support that presumption.2 I argued that the integration presumption was reflexively borrowed from the racial context without consideration of whether it was effective in the disability context.3 I have also applied an anti-subordination perspective to the area of voting to argue that we could do a better job of improving the availability of voting to individuals with disabilities if we moved beyond the integration paradigm to consider how to make in-home voting more accessible to individuals with disabilities.4 Throughout that work, I have been agnostic about the remedy of integration and have insisted that integration be chosen as a remedy only when it can be shown to be likely to produce substantive equality relying, in part, on empirical data.5 Because my anti-subordination framework, which I have recently applied to the disability context, was initially developed in the race context,6 I have * Heck-Faust Memorial Chair in Constitutional Law, Michael E. Moritz College of Law, The Ohio State University. I thank Barbara Schwabauer for her assistance with this article. I also thank my colleague Marc Spindelman for reviewing an earlier draft of this article. Finally, I thank the Moritz College of Law for providing me with the research funds to support the work underlying this article. 1 See generally RuTH COLKER, WHEN IS SEPARATE UNEQUAL?: A DISABILITY PERSPECTIVE (forthcoming 2009). 2 See Ruth Colker, The Disability Integration Presumption: Thirty Years Later, 154 U. PA. L. REV. 789, 795-796 (2006). 3 Id. at 790. 4 See Daniel P. Tokaji & Ruth Colker, Absentee Voting by People with Disabilities: Promoting Access and Integrity, 38 McGEORGE L. REv. 1015, 1017 (2007). 5 See generally Colker, supra note 1. 6 Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REv. 1003, 1007-08 (1986) (Under the anti-subordination perspective, it is inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole .... From an anti-subordination perspective, both facially differentiating and facially neutral policies are invidious only if they perpetuate racial or sexual hierarchy.).

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