Disability Law: From tenBroek to the Twenty-First Century

by Daniel B. Frye

The National Federation of the Blind Jernigan Institute sponsored a first-ever disability law symposium on April 10 and 11, 2008, at its headquarters in Baltimore, Maryland. Entitled Disability Law: From tenBroek to the Twenty-First Century, this conference honored and examined the disability-related scholarship of Dr. Jacobus tenBroek, distinguished constitutional lawyer, professor, and NFB founder, and reviewed developments in disability law to the present. Five nationally recognized disability law academicians and clinical practitioners chaired panels and presented papers ranging from the influence of Dr. tenBroek’s earliest writings on the legal rights of disabled people as manifested in contemporary civil rights legislation to the recent adoption of the United Nations Convention on the Rights of Persons with Disabilities. Two commentators offered further reflection and feedback on the remarks of each presenter.

Over one hundred people from the United States and Canada, representing seventy-two organizations, attended the symposium. The NFB Jernigan Institute; the American Bar Association, Commission on Mental and Physical Disability Law; the Texas Journal on Civil Liberties and Civil Rights; the Daily Record, the legal and administrative newspaper in Maryland; the Maryland Department of Disabilities; and the Maryland Governor’s Office of the Deaf and Hard of Hearing cosponsored this professional gathering. The Texas Journal on Civil Liberties and Civil Rights published the formal proceedings of the law symposium early this fall. Those interested in comprehensive coverage of this symposium should visit the Journal’s Website at <www.txjclcr.org> for further information.

On Thursday evening, April 10, symposium participants assembled for an introductory reception in Members Hall at the Jernigan Institute. Academics, lawyers, and law students interested in the field of disability law used this occasion to become better acquainted and discuss issues before the formal programming commenced on Friday morning.

Following a continental breakfast, President Maurer, who chaired the conference, called the meeting to order at 8:45 a.m. in the Institute’s NFB of Utah Auditorium. He reviewed Dr. tenBroek’s contributions to the American and international blindness consumer movements, since many attendees had been familiar with only his mainstream professional contributions in disability law and in the equal protection sphere of constitutional jurisprudence. President Maurer told the audience the complete tenBroek papers collection was the centerpiece of the Jacobus tenBroek Library, the Institute’s library dedicated to becoming the most comprehensive research facility on all nonmedical aspects of blindness in the country.

Robert Dinerstein, professor of law and director of the Disability Rights Law Clinic at American University, Washington College of Law, chaired and presented a paper for the first panel, “The State of Disability Law in the United States in 2008: How Full Is the Glass?” Before assuming this position in 1983, he was an attorney for five years at the Department of Justice, Civil Rights Division, Special Litigation Section, where he tried cases on conditions in state mental retardation, mental illness, and juvenile institutions. Professor Dinerstein has a J.D. degree from Yale Law School. For over twenty years he has taught a law and disability seminar. In 1994 President Clinton appointed him to the President’s Committee on Mental Retardation (now the President’s Committee on Intellectual Disability), where he served until 2001. Professor Dinerstein is the former president of the Legal Process and Advocacy Division of the American Association on Mental Retardation (now the American Association on Intellectual and Developmental Disabilities). He serves or has served on a number of boards of directors and committees addressing legal issues for disabled people, including the Maryland Disability Law Center; Washington Legal Clinic for the Homeless, Inc.; Equal Rights Center; Mental Disability Rights International; and the Quality Trust for Individuals with Disabilities, Inc., in Washington, D.C., for which he is the president of the board. Finally he consulted for the World Health Organization on the revision of mental health laws in Ghana and Malawi, and he was a signatory to the Montreal Declaration on Intellectual Disabilities in October 2004.

Professor Dinerstein said that the state of disability law in this country could best be judged case by case. He noted that we are celebrating the eighteenth anniversary of the Americans with Disabilities Act (ADA), and much has been accomplished for the disabled community, but the ADA and other pieces of civil rights legislation targeting disabled people in America are not used to their fullest potential. He lauded the adoption of the United Nations Convention on the Rights of Persons with Disabilities, but he observed that the current administration has declined to sign the document for the United States. He commended Congressional efforts to strengthen the ADA through the ADA Restoration Act but again noted that the fate of this legislation and much else that will influence opportunities for disabled people may turn on the national elections in 2008. He concluded that the answer to his original question (How full is the glass?) was still up in the air. The two commentators for this panel were Laura Rothstein, professor and distinguished university scholar at the University of Louisville, Louis D. Brandeis School of Law, and Mildred Rivera, an attorney with the U.S. Equal Employment Opportunity Commission.

Michael Stein, professor of law at the College of William and Mary, Marshall-Wythe School of Law, spoke as part of the second panel, “The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be in the World.” He holds a J.D. from Harvard Law School and a PhD from Cambridge University. Currently the executive director of the Harvard Project on Disability as well as teaching, he has also taught at Harvard, New York University, and Stanford law schools. Before joining William and Mary in 2000, he clerked for now United States Supreme Court Justice Samuel A. Alito Jr., while the judge served on the Third Circuit Court of Appeals. He previously practiced law with Sullivan and Cromwell in New York. While practicing with this firm, he served as president of the National Disabled Bar Association and as pro bono counsel for the United States Department of Justice’s Environmental Division and the Legal Aid Society’s Juvenile Rights Division.

An internationally recognized disability rights expert, Professor Stein helped draft the United Nations Convention on the Rights of Persons with Disabilities, and he consults with international governments on their disability laws and policies. He is legal advisor to Rehabilitation International and to the Special Olympics. He is currently an American Bar Association Commissioner on Mental and Physical Disability Law.

Professor Stein focused his remarks on Dr. tenBroek’s precedent-setting work on legal concepts of participatory justice and equal protection for people socially disadvantaged because of their race or disability. After reviewing some of Dr. tenBroek’s landmark writings, he linked tenBroek’s work to the United Nations Convention on the Rights of Persons with Disabilities: “tenBroek’s jurisprudence on participatory justice underpins the principles of the UN convention.” He said that Dr. tenBroek was one of the earliest architects of the social model of disability and that he championed participatory justice as one means of remedying the wrong of social isolation that disabled people regularly experience.

Finally, Professor Stein turned his attention to the substance of the United Nations Convention on the Rights of Persons with Disabilities. He explained that this convention of fifty articles was loosely modeled on the United Nations Convention on the Rights of the Child, identifying substantive rights, avenues for implementation, and methods for monitoring. He paid particular attention to Article Three (requiring full and effective integration of the disabled into society), Article Five (requiring nondiscrimination policies against disabled people), Article Eight (addressing the issue of underlying social attitudes toward the disabled), and Article Nine (requiring the removal of barriers and clarifying, for people with disabilities, an entitlement to basic human rights). In closing, he emphasized Article Thirty, imposing a duty on states to make aspects of cultural life, recreation, and sport accessible to disabled people. The commentators for this panel were Maria Veronica Reina, director of international programs at the Burton Blatt Institute, Syracuse University, and Michael Perlin, professor of law and director of the International Mental Disability Law Reform Project at the New York Law School.

Before lunch President Maurer introduced a newly produced seventeen-minute video, Jacobus tenBroek and the Right to Live in the World, which included a brief biographical sketch of Dr. tenBroek’s life but largely focused on his legal career. Copies of the video may now be purchased from the NFB’s Independence Market. During lunch President Maurer delivered a thought-provoking keynote address, "Disability and Responsibility: Aspects in the Creation of an Adequate Legal System.” The complete text of this address appears elsewhere in this issue.

Following lunch Chai Feldblum, professor of law at Georgetown University Law Center, discussed “Looking Past the Definition of Disability: How Effective Are the ADA’s Affirmative Requirements in Achieving Equality for People with Disabilities?” She graduated from Harvard Law School in 1985 and clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court. While working at the AIDS Project of the American Civil Liberties Union from 1988 to 1990, she was one of the lead lawyers who negotiated and drafted the ADA. In addition to her teaching, Professor Feldblum is codirector of Workplace Flexibility 2010, a public policy initiative to advance workplace flexibility; founder of the Moral Values Project, an enterprise that uses moral values arguments to advance sexuality and gender equality; and director of the Federal Legislation Clinic at the Georgetown University Law Center. On behalf of various organizational clients of the Federal Legislation Clinic, she has been involved in a range of federal legislative and administrative issues in disability, including civil rights, health, benefits, and immigration.

After reviewing the affirmative requirements in Titles I and III of the ADA, Professor Feldblum suggested that the community should be asking questions. How effective are requirements in the law right now? How do we guarantee the continued effectiveness of the law while working to restore the definition of disability in the ADA through federal legislation? Are some of our goals better achieved, not through discrimination law, but by having the government require desired outcomes? The commentators for this panel were Daniel Goldstein of Brown, Goldstein, and Levy, and Douglas Kruse, professor of human resource management/labor studies and employment relations at the Rutgers University School of Management and Labor Relations.

Robert Burgdorf, professor of law and director of the Legislation Clinic at the University of the District of Columbia, David A. Clark School of Law, chaired the last instructional panel of the afternoon. He delivered a lecture entitled “Restoring the ADA and Beyond: Disability in the Twenty-First Century.” He holds a J.D. degree from the University of Notre Dame School of Law. He has written extensively on the rights of disabled people, and he was the principal author and general editor of the first law school casebook in disability law. The U.S. Supreme Court has acknowledged Professor Burgdorf as the original author of the Americans with Disabilities Act introduced in the 100th Congress in 1988; the bill was reintroduced with revisions in 1989 and signed into law in 1990. In more recent years Professor Burgdorf has written a number of articles critical of the Supreme Court’s interpretation and narrowing of the provisions of the ADA. His 2004 article “Righting the ADA” reviewed a series of U.S. Supreme Court cases, identifying ways in which the nation’s landmark disabilities legislation has been weakened through judicial decisions. The ADA Restoration Act introduced language to reassert the original intent of the ADA.

Though charged with evaluating the future of disability law in America, Professor Burgdorf devoted most of his time to chronicling the ways in which federal courts have limited the scope of the ADA. He reflected that Dr. tenBroek’s legal principles of integrationism, participatory justice, and social construction of disability should guide our future work in disability law. He reiterated his 1986 warning that the American disability movement is not yet especially strong or effective. Disability-related court decisions have created a bleak legal environment. He also suggested that evolution in technology would have both a positive and negative influence on the future of disability law in America. John Kemp, principal at Powers, Pyles, Sutter, and Verville, and Andrew Imparato, president and CEO of the American Association of People with Disabilities, were the commentators for this panel.

Peter Blanck, university professor and chairman of the Burton Blatt Institute at Syracuse University, closed the symposium by facilitating an open forum among conference participants commenting on the day’s presentations and expressing their views about the current and future state of disability law in America.