By Mike Dorf
I recently received the copy-edited version of my forthcoming book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison). In the chapter on suspect classifications in equal protection I had used the term "mentally retarded," following the language of the leading case on the subject, Cleburne v. Cleburne Living Center. The copy editor suggested substituting "developmentally disabled," noting in the margin that although "mentally retarded" is still in use, it is regarded as offensive. Not wanting to give offense, we made the change. (A friend since noted that in her view "developmentally delayed" is preferable to "developmentally disabled" although "delayed" strikes me as the wrong term for an adult.) Here I'd like to reflect a bit on how and why the names for disempowered groups change over time.
Let's begin with disability. Many years ago, persons with physical disabilities were routinely called "cripples." That term, which is clearly offensive today, gave way to "handicapped," which in turn has mostly given way to "disabled." (In some circles, terms like "differently abled" are preferred but "disabled" and "disability" appear to remain widely acceptable.) Meanwhile, persons with developmental disabilities were once called such terms as "imbeciles," "morons," and "idiots," all of which are clearly offensive today and were probably never meant to be purely descriptive. For one view of the old terminology, see Justice Scalia's dissent in Atkins v. Virginia, in which he notes, among other things, that in the 19th century, "imbeciles" were understood to suffer from "a less severe form of retardation" than "idiots." Note too that as recently as the Atkins decision, in 2002, all members of the Court were comfortable using the term "mentally retarded." In Atkins, Justice Scalia also discusses "lunatics," an old catch-all for people who would today be described as suffering from various mental illnesses. To my knowledge, "mentally ill" and "mental illness" are not now widely regarded as offensive terms, though they may be some day.
What is going on here? Broadly speaking, social attitudes infect language. I do not see why, as a matter of literal language, "handicapped" is more offensive than "disabled." I get that "crippled" is inherently pejorative, insofar as it suggests that a "cripple" is unable to care for herself at all, but arguably "disabled" is worse than "handicapped." "Handicapped" connotes an obstacle that a person faces but can overcome (as its continued use in golf indicates), and thus seems closer to the term "challenged" that is sometimes preferred. By contrast, a person who is "disabled" could be literally understood to be unable to perform some set of life tasks. Likewise, "developmentally disabled" is roughly a linguistic synonym for "mentally retarded." Here too, focusing on the words alone might lead to the conclusion that the older term is more empowering. Substituting "developmentally" for "mentally" simply adds a bit of confusion, because one may wonder about the "development" of which faculty or faculties one is discussing. Meanwhile, "retarded" literally means "slowed," whereas "disabled" could again stand for a total inability. Thus, taken literally, "mentally retarded" appears to connote greater capacities than "developmentally disabled."
Yet to focus on the literal meaning of the words in the way I have just done is to miss their larger social meaning. The terms "handicapped" and "mentally retarded" came to be associated with the social attitudes of the larger public at the time these terms were widely used. Those attitudes were infected by disgust and pity on the part of the non-disabled, while persons with disabilities were made to feel shame. Contrast President Franklin D. Roosevelt's elaborate efforts to conceal his wheelchair use with the role that former Senator Bob Dole played in promoting passage of the Americans With Disabilities Act and in serving more broadly as a spokesperson and role model for Americans with disabilities. Or contrast the horrible mistreatment of Rosemary Kennedy with Sarah Palin's proud display of her son Trig. "Handicapped" and "mentally retarded" became (or are becoming) offensive terms because of how the words made people feel about certain conditions, rather than because of their literal meanings.
To be sure, some shifts in language follow a different logic. Consider race. Putting aside the "N word," which was always offensive (when used by whites), over the last 70 years or so, we have seen shifts from "colored" to "Negro" to "Black" to "African American," and then, in some quarters, back to a version of where we started with "persons of color"--although that last term is meant to encompass just about all non-Europeans, rather than Americans of (at least part) African descent specifically. The first two shifts appear to fit the pattern of rejecting a word because of the attitudes with which it had become associated, but note that the jury is still out on "Black" versus "African American." That last move was not motivated by any sense that "Black" had become offensive, and it still isn't. Jesse Jackson, who urged the change, was mostly making a point about the asymmetry of referring to one social group by skin color and referring to other, comparable, groups by ancestral origin (e.g., "Italian American").
Similarly, I do not think that the shift from "Indian" to "Native American" was an example of displacing a word that had become offensive. As with "Black" to "African American," this shift has not been overwhelmingly embraced by the group itself. Moreover, the desire to move away from "Indian" may partly reflect changing American demographics: The wave of immigrants to the U.S. from India following legal changes in the 1970s made the term "Indian" especially confusing when used to refer to Native peoples.
Finally, I want to offer a hypothesis: One way we can tell that society has made substantial progress towards eliminating unwarranted stigmas and attitudes towards a group is to notice that the group's name stabilizes. Conversely, where stigma and attitudes reflect a deep-rooted and arguably justified dislike for a group, no amount of name changing will help. Consider the shift from "psychopath" to "sociopath" to "antisocial personality disorder." That last term is misleading insofar as it seems to connote shyness rather than lack of empathy. In any event, I predict that "antisocial personality disorder" won't stick, given the repugnant behavior characteristic of persons with this condition.