ROUGH DRAFT

2017 Jacobus tenBroek Disability Law Symposium

“Disability Justice and the Supreme Court: The Constitution and the Right to Live in the World”

Held at:

The National Federation of the Blind

Baltimore, MD

March 30, 2017

8:30 a.m. – 5:31 p.m.

CART CAPTIONING PROVIDED BY:Natalie C. Ennis, CRC, RPR / CI and CT

Certified Realtime Captioner / ASL Interpreterennis.natalie@gmail.com

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This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings

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MARK RICCOBONO: Good morning, and welcome to the tenth anniversary of the Jacobus tenBroek Disability Law Symposium at the National Federation of the Blind.

I am Mark Riccobono, President of the National Federation of the Blind, and it's my pleasure to welcome you here this morning to our law symposium.

We have a busy agenda, so if the folks in the back of the room want to encourage the slow folks on the other side to move this way, that would be great.

This is our tenth anniversary, and I do want to begin by thanking our sponsors for helping us put on this law symposium in 2017.

On our sponsor list, I would like to acknowledge at the gold level the AARP Foundation, Brown, Goldstein & Levy, Rosen, Bien, Galvan & Grunfeld.

At the silver level, we have Disability Rights Advocates, Paralyzed Veterans of America, Whiteford Taylor Preston.

At the bronze level, we have the Burton Blatt Institute.

At the advocate level, we have Scott LaBarre as well as Goldstein, Borgen, Dardarian & Ho.

At the supporter level, we have Disability Rights Education and Defense Fund and the law offices of Lainey Feingold, the Arc, and the Mid-Atlantic ADA Center.

So thank you to our sponsors.

If you could give them a round of applause.

[Applause]

Also this law symposium is made possible because of the volunteer work of our outstanding steering committee that discusses year round what we might do at this symposium where the connections are, puts in a lot of the elbow grease to make sure we can get the invitations that we need to and make sure that our content continues to be on the cutting edge.

At the top of our steering committee list is the staff member here at the National Federation of the Blind, for who these ten years has really been behind the scenes making all the pieces happen, and that's Lou Ann Blake. So we should give her a round of applause.

[Applause]

She's probably not in the room because she's dealing with something, so make sure to thank Lou Ann for her work.

Also we have on the steering committee Rabia Belt, Charles Brown, Matthew Dietz, Robert Dinerstein, Timothy Elder, David Ferleger, Leslie Francis, Jasmine Harris, Sharon Krevor-Weisbaum, Scott LaBarre, Anil Lewis, and Michael Perlin. So thank you to our steering committee.

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[Applause]

The National Federation of the Blind knows that blindness is not the characteristic that defines you or your future. Every day we raise expectations of blind people because we recognize that low expectations create obstacles between blind people and our dreams, that you can live the life you want and that blindness is not what holds you back.

We have that same recognition for other people with disabilities. Although we're very well aware that we don't speak for other people with disabilities; we only speak for blind people. So one of the primary purposes of our law symposium is to create a community that gives us the opportunity to share our knowledge about disability and disability law, but to learn and engage with other strong advocates to help inform what we do on a day-to-day basis for blind people. And it is our privilege to come together every year with like-minded individuals to talk about how we advance disability law.

Now, this is our tenth year. How did that happen? We just turned around and it was ten years later.

And over the many ten years that we've had, there have been many great things that have changed, not just in disability, but in the world. The economics are different than they were ten years ago. I'm going to go out on the edge and say the politics are different than they were ten years ago. The technology is different, right? Ten years ago we were just trying to figure out what is an iPhone.

And in many ways the Civil Rights Movement are different than they were ten years ago with the use of social media and other avenues for organizing.

And most importantly, disability rights is stronger than it was ten years ago because of the community that has been built through our Jacobus tenBroek disability law symposium. Our symposium is named after Jacobus tenBroek. He was the first President of the National Federation of the Blind. He was a constitutional law scholar. He was a community builder. And he always looked for innovative ways to use the tools of law to make a difference in the world. And I think through our ten years of the disability law symposium, we have achieved both of those things, building community and using the tools of law more effectively.

In this space that we have created together, we have established a bond of expert veterans. By show of voice or clapping, how many people have been here every year? So some stalwart veterans.

And we've also brought in a number of aspiring rising stars. How many are here for the first time.

A lot of them. Or how many folks are young folks -- how many people are law students? How about that? They're all in the back corner closest to the coffee.

[Laughter]

We've created a real community of professional practice where many people in this room have done work together where they hadn't before. How many, because of our

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law symposium, have done work with someone they think maybe they wouldn't have connected with?

How many are members of the Disability Rights Bar Association.

All of these connections and most importantly the avenue of thoughtfulness that's come out of our law symposium is helping to improve disability rights on a daily basis and make those connections that make our community stronger.

You know, in this space, disability is part of the normal human experience. It's our challenge to take what we do here and make that normal throughout the rest of the world. And I truly believe that the connections, the bonds that we're forging and the discussions about how we use the tools of law will do that.

I want to again share my commitment on behalf of the National Federation of the Blind through the work that we do together, and to the commitment to turning our dreams into reality. We think that we know some things about this space, but we thank you for your participation. Because more importantly, we hold this law symposium because we believe there's something more to learn, and that by sharing our unique and diverse perspectives, we are all stronger together.

As I reflect on our ten years, there's been many inspiring and thought provoking presentations, and in examining the agenda that our committee has put together for 2017, I don't think we will be disappointed this year.

Besides the tradition of thoughtful presentations, another big reason for the success of this symposium has to do with the man who is going to make our theme keynote presentation this morning. Marc Maurer has many distinctions. He has had a profound impact on disability law, policy, and building community for better than 40 years. He has helped inspire many people in this room, and furthermore, many people around the world. He has been a tireless student of the law, and the tools of making it stronger to advance opportunities for people with disabilities in his professional pursuits and personal sacrifice. He is celebrated in many of the achievements that people with disabilities have made over the time that he has been working on the law and other aspects of disability.

But he's not done. And I think we'll find today that he's got more thoughts to share with us and more impact to have on the area of disability.

It is my pleasure to introduce to you this morning my mentor and the gentleman who will again chair this symposium, as he has since the beginning, I give to you the director of legal policy for the National Federation of the Blind for our themed keynote, here is Marc Maurer.

[Applause]

MARC MAURER: Thank you very much for the generous words and for the warm welcome. It's good to be back. I have been at all these symposia, and the feeling in the room today is different from the one we had at the beginning, as I know from personal experience.

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Are disabled people fit to enjoy the same activities as other people? Do they have the same legal protection that others can expect? Is the value represented by those with disabilities recognized within the law? What has the Supreme Court said? In the federalist papers number 78 Alexander Hamilton offered the opinion that among the branches of government, the judiciary from the nature of its functions will always be the least dangerous to the political rights of the constitution.

Was Alexander Hamilton correct about the constitutional protections provided to people with disabilities? What does the record disclose?

Disability is a challenge to the judiciary. What is disability? Why is the subject such a hardship to the judges?

People with disabilities are unable to hear or speak or see or walk or lift or communicate or manage daily activities without uncommon emotional or mental reaction or a combination of these traits. Because most judges do not have experience with these conditions, the concept of a requirement that equality before the law must be maintained becomes a challenge. Most of the judges do not know what to do, and faced with uncertainty, they retreat into the protection of ancient precedent and equally ancient thought.

Perhaps some of this thinking comes from Justice Oliver Wendell Holmes, who published the common law in 1881, commenting on the passage in the book G. Edward White synthesized the thought as follows:

"Blameworthiness in determining liability for tort was ascribed to a person who fell below the standard of care ascribed to the average man, the man with ordinary intelligence and prudence. If a person did not possess the same characteristics as this hypothetical average man, sometimes that fact was taken into account. Blind persons, infants, and on some occasions insane persons were presumed not to be capable of meeting a standard of average care for themselves or others."

Such a statement declares without demonstration that the law is firmly convinced, presumptively, that at least two categories of disability render individuals incapable of meeting an ordinary standard of care. No matter how demanding the challenge of equality for all may be, however, the courts must meet it. This is the purpose for which they were established. The declaration of independence contains the famous assertion that all men are created equal. As Dr. Jacobus tenBroek, in whose name we conduct this law symposium, observed: "This is not a declaratory statement but an imperative one. Before the law, all are equal, and the demand is that the judges make decisions to support this fundamental requirement. However, if those possessing disability are incapable of meeting an ordinary standard of care, how can equality be achieved?"

In 1927, Justice Holmes wrote one of the worst decisions ever adopted by the Supreme Court of the United States, Buck versus Bell. In that case a woman, allegedly disabled, challenged the right of the state of Virginia to sterilize her based solely on the assertion that she was feeble minded. Justice Holmes said that Virginia could take this action without violating any constitutional principle as long as it did so in accordance with legal processes established by the state.

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Justice Holmes is remembered today as a brilliant and progressive thinker, but this decision does not exemplify either brilliance or progressiveness.

In 1924 the Virginia legislature adopted a law authorized forced sterilization for inmates of the colony for epileptics and feeble minded, in instances in which the health of the patient or the welfare of society may be promoted. By the fall of the same year, the colony had decided that Carrie Buck was feeble minded, that she was the child of a feeble minded mother, and that her newborn infant was also feeble minded.

Carrie Buck was without a supportive family. Prior to being placed in the institution for epileptics and feeble minded, she had been sent to perform domestic service for a family, one of whose members apparently raped her.

The institutionalization at the colony for epileptics and feeble minded seems to have been the method used by the family to get Carrie Buck out of the way. Her daughter was born in 1924 and was determined by officials at the colony to be a feeble minded child.

At the age of 7 months, these officials looked at the newborn and without more decided she possessed a mental disability.

The superintendent of the colony decided that Carrie Buck should be sterilized. By the spring of 1927, less than three years later, the Carrie Buck case was before the Supreme Court.

When I thought about this case, I wondered what could possibly have happened? A person who has been placed in an institution alleged to possess mental disability at the age of 18 does not ordinarily have financial resources, specialized training, or political connections that make the appeals process readily available. How could Carrie Buck have managed to get her case before the highest court in the land?

A review of the record shows that the lawyer representing Carrie Buck had previously been one of the directors of the institution where she had been confined. The record also indicates that he never called Carrie Buck to testify on her own behalf, and he never called other witnesses to testify for her.

Furthermore, the superintendent of the institution where she was confined paid the bill for the lawyer purportedly representing Carrie Buck.

She never had independent counsel. She never got her day in court. I reached the conclusion that the government officials responsible for the operation of the colony for epileptics and feeble minded wanted to test the constitutionality of the law, and they decided to use Carrie Buck for their experiment.

In the Buck versus Bell decision, Justice Holmes said there can be no doubt that so far as procedure is concerned, the rights of the patient are most carefully considered.

The plaintiff in error has had due process at law. Did Justice Holmes know what had actually taken place? Did he examine the record to determine if it had been thoroughly made? Did he note the absence of testimony from the person whose rights were being challenged? Did it cross his mind to wonder how a person alleged to possess mental

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disability could have managed to obtain independent counsel to present her case? Did he wonder about the tests used to determine the facts? Did he give consideration to the status of the petitioner, who was a minor during these proceedings?

The decision of the court does not say.

What Justice Holmes did say is that disabled people sap the strength of the state and that having more of them would cause the people of the state to be slumped with incompetents. He also declared that Carrie Buck is the probable social parent of inadequate offspring, and that if she were not sterilized, she would need to be confined. Imprisonment or sterilization: Those are the choices.

The decision declares that Carrie Buck has received procedural due process, despite the flimsiness of the record, that she is not entitled to any substantive due process, and that she is not protected by the equal protection clause of the 14th Amendment.

Carrie Buck is declared to be a positive danger to the state of Virginia because she possesses a disability, which may be inheritable.

State action is based upon the purported urgency to protect the state against the positive danger she represents. Although it has been criticized, this decision has never been explicitly reversed.

The statute authorizing sterilization for the disabled remained on the books until the 1970s. In 1942 in a case Skinner versus Oklahoma, the Supreme Court once again addressed involuntary sterilization for habitual criminal behavior. A person convicted of a crime involving moral turpitude on more than two occasions might be sterilized to prevent the inheritance of this trait by future generations. A unanimous court determined that the crimes for which sterilization were authorized were not distinguishable from other crimes and declared the statute unconstitutional as a violation of the equal protection clause of the 14th Amendment.

However, Mr. Justice Douglas revisited the Buck versus Bell case without reversing.

36 years after the Skinner case, the Supreme Court reviewed still another case dealing with sterilization and disability. In Stump versus Sparkman, the plaintiff, Linda Sparkman, challenged actions of a judge who had ordered her sterilization. Linda Sparkman's mother filed an ex parte petition declaring that her daughter, then aged 15, was somewhat retarded and was exhibiting questionable behavior. Although no state law authorized the action, the judge signed the petition without proceedings.

Linda Sparkman was sent to the hospital for the sterilization operation, having been led to believe that she would be having an appendectomy.

The doctor didn't tell her. Hospital staff didn't tell her. Her mother didn't tell her. And the judge didn't tell her the truth.

She learned of the sterilization only later when she married and sought to bear children. The decision of the Supreme Court, written by Mr. Justice White, held that this prevented the recovery of damage. A judge acting in the capacity of a judge may not be subjected to claims for damage.

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The dissenting opinion observed that the judge had not acted as a judge. The judicial system is intended to be adversarial, not to operate as an ex parte process in which the assertions of one party can be unchallenged. Judicial proceedings are expected to have parties with the right to testify and to present witnesses with the opportunity to cross examine those presenting hostile testimony with the right to know what proceedings are intended to be pursued with the right to independent aggressive counsel, with the right to challenge the facts as presented, and with the right to appeal in case of an adverse ruling.

None of these rights were observed. Nevertheless, the Supreme Court held that the action of the judge was taken in his capacity as a judicial officer and that judicial immunity applied.

Could this action have been taken against any girl or any woman in the state? Was the reason behind the decision that Linda Sparkman, a child, was somewhat retarded, is there any other justification?

In 1990 the Americans with Disabilities Act was adopted which enacted the commerce clause and 14th Amendment as being exercised by Congress for the statute.

In 2001 in board of trustees of the University of Alabama versus Garrett, the Supreme Court found that Title I of the act does not authorize damage claims against a state government because this is prohibited by the 11th amendment, despite language in the act saying that the 11th amendment is aggregated.

The court said that permissible legislation to redress a harm must address a pattern of discrimination prescribed by the 14th Amendment and must have congruence and proportionality in the remedy to address the harm.

The court believed that Congress had not demonstrated this pattern and that Title I of the Americans with Disabilities Act does not have the necessary congruence. Chief Justice Rehnquist, who delivered the opinion of the court, said states are not required by the 14th Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly and perhaps hard heartedly hold to job qualification requirements which do not make allowance for the disabled.

Why did the chief justice think it worth referring to the feelings of state government officials when interpreting civil rights legislation? Does the chief justice believe that participation by disabled people is only a matter of charity? Is it the law that other people may expect protection as the law is written but disabled people may be permitted to participate in government actions if the hearts of those who control the government are right? This language is offensive on many levels.

The chief justice also said it would be entirely reasonable and therefore constitutional for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities. The accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable.

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Is this statement clear? Does it not say that making the full range of employment opportunities available to people with disabilities demands what is not reasonable? Does it not say that the Americans with Disabilities Act is itself unreasonable? Title I of the Americans with Disabilities Act impermissibly expanded constitutional protection for the disabled, said the court.

Three years later, in Tennessee versus Lane, a challenge by plaintiffs with orthopedic disabilities under Title II of the Americans with Disabilities Act was upheld on the grounds that the coverage of Title II was a proportional remedy seeking to redress a harm which consisted of a pattern of discrimination by state government in providing services.

The Garrett case involved a nurse who had been employed by a state hospital when she contracted cancer and asked for accommodations and was then informed upon her return to work that her former position was no longer available to her and that she must accept a lesser one.

The Lane case dealt with plaintiffs who had been accused of crime and who were expected despite their inability to walk to make their way to a courtroom on the second floor of a courthouse that did not possess an elevator.

In the Garret case, the pattern of discrimination was not discernible to Chief Justice Rehnquist, and the congruence didn't exist.

In the Lane case, the pattern of discrimination was evident to Justice Stevens and the congruence was also plain.

Justice Souter in the Lane case in a concurring opinion offered a critical observation about Buck versus Bell. These are the words from the concurring opinion:

"Evidence of a pattern of discrimination against the disabled would show that the judiciary itself has endorsed the basis for some of the very discrimination subject to congressional remedy under section 5 of the 14th Amendment." Buck versus Bell was not grudging in sustaining the constitutionality of the once pervasive practice of involuntarily sterilizing those with mental disabilities.

The decision at page 207 says in part: "It is better for all the world if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough."

Although the Buck versus Bell decision has never been explicitly reversed, it has been criticized sufficiently, even by the Supreme Court, that the force of the decision is largely gone. As Chief Judge Merit of the sixth circuit Court of Appeals observed, virtually all of the Buck versus Bell decision has been abandoned.

In 1927 the Buck versus Bell case stood for the proposition that eugenics was incorporated through the American judicial system. Government could take action to seek to purify the human race, and disabled people could be treated as a sub class or a subspecies of that race.

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In 1982 a child was born in Indiana who was diagnosed with Down syndrome and other correctable ailments. The correctable ailments prevented the child from eating or drinking. Acting in accordance with the advice of their doctor, the parents of this child decided not to correct those ailments.

Six days after being born, the child died of starvation and dehydration. Following the death of this child, the Department of Health and Human Services adopted regulations pursuant to Section 504 of the Rehabilitation Act, directing hospitals to take steps to assure that nondiscrimination is a policy followed by the hospitals in rendering medical care to disabled children.

In 1986 the Supreme Court considered a challenge to these regulations in Bowen versus American Hospital Association. The court ruled that a child with a disability is not a qualified individual seeking the protection of Section 504 in the provision of medical services if the parents have not granted consent to the treatment.

The relationship between parent and child and the determination of medical services to be provided to children are traditionally matters for state authority. Apparently if the states want to protect the lives of disabled children, they may do so. The federal government will not act affirmatively to ensure that disability cannot be used to deny lifesaving medical treatment.

Of course the eugenics movement of today does not ordinarily make life and death decisions about human beings already born. The decisions about infants with disabilities are made before birth. And the advice is often to terminate a pregnancy that might produce children with disabilities.

The Individuals with Disabilities Education Act, formerly known by other names, was adopted by Congress almost half a century ago. This was beneficial because it declared that children with disabilities could receive an education. Since then, the question has been, what kind of an education? An equal educational opportunity is not required by the act, said the Supreme Court. As long as educational benefits are being provided.

How many educational benefits? As the Supreme Court pointed out in the Endrew case, some states thought it should be merely more than the minimum. An appropriately challenging education is required by IDEA, said the court when reversing the merely more than de minimis standard.

The promise of the Individuals with Disabilities Education Act is restored by the court. The act is not intended just to get disabled students out of the house and into the school. When they are at school, the teachers must seek to educate them.

What does all of this mean for us? At the outset, those who participate get to be an element of the group that sets the agenda. What people with disabilities declare is this: We will be in the room. We will be among those in the halls of power. We will be part of the group gathered around the table for decision.

As Dr. Jacobus tenBroek said in 1957, we are citizens of the United States now and are now not merely in some future generation possessed of the right to be citizens and

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share the privileges, immunities, and responsibilities of that status. Moreover, the bounty of the constitution extends to all persons, whether citizens or not. Rights to freedom, equality, and individuality, as citizens then or as persons who happen to be deprived of one of their physical senses, we claim under the broad protection of the constitution the right to life, personal freedom, personal security, the right to marry, have and rear children, and to maintain a home, and the right so far as government can ensure it to fair opportunity to earn a livelihood which will make these other rights possible and significant.

This prophesy, expressed by Dr. Jacobus tenBroek, 60 years ago, will come true.

[Applause]

With the coming of the Americans with Disabilities Act, disability cases have appeared more often in the federal courts than in previous times. But the number of these is still tiny. The judges routinely employ stereotypical thinking to make decisions with respect to the rights of disabled people. They often possess not just limited comprehension of the capacity of the disabled but a distorted understanding. This means that more cases must be brought with more knowledgeable advocates, advocates such as the people in this room and others that we can recruit. We must also seek positions on the bench. In the past, disability denoted failure or worse. Parents who found themselves with disabled children wondered what they had done wrong, who in the family had sinned. What fatal flaw in our makeup caused this tragedy? Then they wondered, who will care for this child when I cannot?

Disability signified blame and shame. Too many judges believe this still, and it is our job to change it. Disability does not signify that those who share this designation are unfit to participate fully as integrated members of society. It does not mean those who possess such characteristics are abnormal or unnatural. Disability is part of our culture, and it always has been. Those who possess these traits have value, and we demand that it be recognized, and that our opportunities be expanded in accordance with this recognition. The battle may occur on the streets, in the halls of Congress, in the courtrooms of the land. The challenge before us is enormous, and the details are legion. But we have the courage and we can find the strength. 90 years after the Supreme Court told us our rights could be dismissed out of hand, we have made a decision and we will not be dissuaded. We will enter the Supreme Court building. We will be within the chamber. And some of us will be welcomed on the bench. That's what we say.

[Applause]

Well, it's good to be back.

[Laughter]

We've got a lot to cover. And I want our next panel to come, if you would. I've been talking about the 14th Amendment, and I don't know what these folks are going to say, but we're going to talk about the unequal application of it. We have two extraordinary human beings to tell us more about this topic. The subject of what's wrong with it is

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fairly easily described. Or at least I think it is. The subject that is fascinating, and one I very much look forward to hearing from you folks is, what to do about it.

So we have Sam Bagenstos, what is a professor of law at the University of Michigan Law School. He has been part of the Department of Justice. I don't think they want you back right now, Sam.

[Laughter]

And he's been a litigator on the subject of disability and equal rights for disabled people and minority groups, and he's had not just a long career of it, but a very recent win in the Supreme Court which maybe he'll cover. I left it out of what I was doing. But it's so recent that I'm not sure the law reports have caught up with it yet.

And then we have Sylvia Lee, who is senior staff attorney of Disability Rights Education and Defense Fund, and I have looked at your bios, both of you, and I could read them, but you would like to have something to say this morning I think.

So how about if we let you folks have at it for a bit, and then we'll see if we have time for some questions.

Which of you will begin?

SAM BAGENSTOS: Okay. I guess I will.

MARC MAURER: Sam? Very well.

[Applause]

SAM BAGENSTOS: Great. So it's really terrific to be here. I have not been at every one of these, but I try to come every year to the extent I can. The NFB has just created such an important space for the development of both a community of disability rights lawyers and the ideas of disability rights law. I think this is a place where a lot of the disability law of the next 20 years gets hatched, and we've seen that over time. It's been terrific to think about the various ideas that get bandied about in this room and in the other rooms of this building during this symposium and what has actually happened with them. And I will sometimes read in the law reports about a case and say, oh, yeah, I remember when that was an embryonic idea at the tenBroek symposium. So it's really great to be here, and it's great to be talking about this topic. I think this is the most thematic tenBroek meeting that I've been to. There's a really consistent theme in a lot of the presentations, which is thinking about taking that constitutional principle of equal concern and regard and the constitutional requirement of equal protection of the laws and thinking about how do we apply that in the context of disability and how has our legal system applied it well or not in the context of disability. I think Dr. Maurer's presentation really teed this up really nicely for us.

You know, the equal protection of the laws was a central object of Jacobus tenBroek's own study and writing. He was a leading scholar of so many things, and a leading activist, and sort of the model of the engaged scholar.

But one of his very central scholarly projects was actually unearthing and writing about the original meaning of the 14th Amendment. He was an originalist before people

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talked about originalism, and the original meaning of the 14th Amendment, what he got from that was, what he got into with that was an extensive study of the legal thinking of abolitionist lawyers in the period prior to the Civil War and showed how their thought informed their understanding of the drafters of the 14th Amendment.

So I think this is just exceptionally important and appropriate to have this conversation at this symposium.

What I want to talk about, I do think Dr. Maurer has done a great job of teeing up the what's wrong. So I will heed the advice to not talk so much about the ways in which the legal system and the courts have provided unequal protection in the context of disability, and I really want to talk about the question Dr. Maurer focused us on, which is what do we do about it. Right? And I think a lot of the conversations today will be about that.

Let me just offer my views about that, and hopefully we can have some discussion here and maybe it will tee up some discussion later on in the conference.

So I like to think about this in sort of two categories of questions. They're pretty straightforward questions: What do we want and who is our audience?

When we're thinking about taking the constitutional principle of equal protection and giving it real meaning as applied to disability and the context of disability, I think we want to really focus on what do we want out of that, aside from the very highfalutin and abstract idea that equal protection applies to everybody, can we get more concrete.

And in thinking about trying to give this some meaning, and how do we get there? I think that requires in the immediate term who it is we're talking to, who are the folks we're trying to persuade and how.

So first, what do we want? My bias here, as I said, is to think about this really in terms of concrete substantive outcomes, not in terms of abstractions. The disability rights movement in America has always been a social movement, with a lot of ideas, deeply theorized. One of the great things about the disability rights movement is people who have disabilities are coming together and thinking hard about what's wrong with the world and trying to change it.

But the thinking really hard and the theorization has always been in service of concrete substantive outcomes. So I want to kind of follow that tradition in my discussion.

So what are the concrete outcomes that we want? Do we want a change in the constitutional doctrine? Dr. Maurer went through a bunch of Supreme Court cases that failed to provide people with disabilities the same protections of equality that other folks get, and that failed to require state actors to protect the rights of disabled individuals in the same way that state actors protect other people. Do we want changes in that constitutional doctrine?

And there are some questions we can ask: Do we want to challenge in the Garret decision the idea that disability-based discrimination is subject to the lowest level of constitutional scrutiny? That's a very specific constitutional doctrine question, one that many people are asking.

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Do we want to challenge the lack of a constitutional basis for decisions like the Olmstead decision, which is the Brown versus Board of the disability rights movement but is it based on interpretation of the statute? Not even that but interpretation of a regulation interpreting statute? So do we want that?

So what I want to ask about that is what would changing these constitutional doctrines or what would putting some of these doctrines on a constitutional basis as explained by courts get us? I think that's a real question that needs to be engaged. The question has to be as a concrete matter, what would change in the world if courts did this?

We also might want to have a broader change in the understanding of what our constitution is about. So this is a project I've engaged in somewhat academically, thinking about taking Jacobus tenBroek's ideas about equal protection and abolitionist equal protection and saying why can't we make that more of the centerpiece of the way people think about the equal protection clause, both with regard to disability and generally.

And again, that's at a very high level of abstraction. That's really a question of how we think about the constitution. And I want to think hard about, what might one actually get out of that?

Maybe what we want, to get closer to the ground, is we want changes in institutional practices of governmental and private actors. Maybe that's what we want. So what we want to do is we want to eliminate the practices that lead to segregation in society for people with various kinds of disabilities, right? So we want to challenge things like sheltered workshops and segregated day wasting programs. We want to challenge the rise in hate crimes against people with disabilities. We want to challenge police use of force against disabled people, which is tremendously disproportionate to other use of force instances. We want to challenge an issue that has arisen recently, raising very seriously the question of, are disabled people thought of as full and equal members of our community, in the discussion of closing the borders? There's an effort by many people who are alive with the Trump administration, that the Trump administration may run with, to say that disability is a reason why we might not want to admit people, and we have for a long time actually, you know, owing in significant part to the eugenicist ideas that Dr. Maurer talks about, we have for a long time had disability floating around questions of immigration, right, for many years medical conditions that today we call disabilities were just categorical reasons for inadmissibility, but that like many other things has changed as the disability rights movement has gained force. We may be seeing a regression in that. So do we want to change that?

Are those things that we want? And if so, how does a strategy of talking about constitutional equal protection change things, affect things?

So I'll say, my bias is that it's really important to start with questions like this that are on the ground questions. And I'll explain why. For a couple reasons. One is, I think you can have a lot of fights about abstractions. I think it's important to have a sense of goals, to have a sense of what it is you're aiming for, but I also think it's important not to be detained by fights over things that are really, really questions in the air, but also, and I think this is one of the points I want to make throughout the rest of this talk, it's about a

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theory of constitutional change. How does the constitution in America change? We know we have a constitutional amendment provision. There's a process for amending the constitution. The constitution has been amended 27 times. Often those amendments have come in bursts. So we have right after the founding, we have the Bill of Rights, we have the 11th amendment, the 12th amendment pretty close to the founding. We have the reconstruction amendments, we have the amendments of basically the progressive era, right, so women getting the right to vote, direct election of senators, prohibition, then getting rid of prohibition. And we have the amendments associated with the 1960s and the Civil Rights Movement. So we have the D.C. voting amendment and so forth.

These often come in bursts. But for the most part, we don't have formal amendments of the constitution. There are other constitutional systems that do. We don't. That's not mostly how our constitution changes.

Mostly how our constitution changes is you might say through judicial decisions like what Dr. Maurer was talking about, and that's true in a significant way, right? So the 14th Amendment's text didn't change between Plessy v Ferguson and Brown v Board. What changed at the level of the court is after Plessy, separate but equal was constitutional and after Brown it was not anymore. First in schools and then the court made clear shortly thereafter in anything else that was a public activity.

But there's something even deeper than that, which is how did that constitutional change happen? How did the constitutional change in getting from Plessy to Brown, how did the constitutional change in any of the sorts of constitutional change that we talk about in a significant way, how does that happen?

And my view, and the view of a lot of scholars of the constitution, is that constitutional change really happens from the bottom up. Constitutional change does not happen from just people filing cases and getting into the Supreme Court and convincing the justices, five justices, that this is what the constitution means. That is the end of the process. That's the thing that we all talk about.

But what really makes constitutional change is both movements like the disability rights movement organizing, protesting, pressuring, creating a sense of movement in the world, but also there are successes at various levels before we get to courts at all or the Supreme Court. It's changes in institutional practices in the world. It's changes in the way that other leading government agencies or lower courts think about issues that are in the same order as the constitutional change they're trying to make, right? That's how constitutional change happens.

So that suggests to me that if we're thinking about a strategy here, and I think it's incredibly important to be focused on the question for the next 10-20 years of how we can get the legal and constitutional system to think about disability equal protect the same way it thinks about equal protection in the context of race or sex, and how do we do that? That suggests to me the way we do that is not actually by writing a brief that says that today, right? That may be part of it. But the most significant part of it is getting changes in the world, creating integrated communities that create an example and create political pressure and power for the disability rights movement.

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Okay. So that leads me to the question of, who is our audience? If we're thinking about changing the attitudes of the legal system toward equal protection and disability, who are we thinking about? Who are we trying to win over?

Ultimately, sure, courts. But if we think about courts, again, in the short to medium term, courts are going to be very conservative. So I sought Eve Hill out. There she is in the corner. She gave terrific testimony at the Neil Gorsuch hearings, and I really commend it to all of you. Presuming that Neil Gorsuch is the fifth vote on the Supreme Court, or is the new fifth member of the conservativish,- very conservative - majority on the Supreme Court, you know, we know from Eve's testimony but also from his record generally, just what it means to be that kind of a conservative jurist these days, we know this is not going to be a very friendly Supreme Court to disability issues. We know if you want to think -- I think of Garrett as just an incredibly horrible decision. I think it's terrible in so many ways. One of the ways in which it's terrible is it takes a confusing, ambiguous decision with multiple strands in different directions, and completely fails to take seriously any of the parts of the Cleburne decision that provide robust protection on the basis of discrimination of disabilities. It said, well, they were applying the ordinary rules of rational basis. That's the footnote that Chief Justice Rehnquist drops.

No, that's not what they were doing and everybody knows it. Even if Justice White wrote an opinion that could be read that way if you only looked at half of it, you can't only look at half of it.

We need to change Garrett, but the court tomorrow or the court in a few weeks wants the filibusters and vote to blow up and Neil Gorsuch seeded on the Supreme Court will be a more conservative court than decided Garrett. Who was in the majority in the Garrett case? Well, you know, it wasn't just Chief Justice Rehnquist, who was actually slightly to the left of chief justice Roberts who replaced him, surprisingly enough, but also Justice O'Connor, who was way to the left of Justice Alito, who replaced her. Again, I grew up in a world where Rehnquist and O'Connor were sort of the model of a very conservative jurist, and we keep moving to the right.

Gorsuch is going to be a person who is going to be exactly where Scalia was on this stuff. So in the near term, the expectation that there is a change in the Supreme Court's doctrine is not something that I would expect at all.

And remember my theory of constitutional change, which again is not just my theory, that the Supreme Court is not the place we're going to find success in the first instance ever.

Now, some of this, you know, there will be opportunities in lower courts, but of course any time a lower court steps out too far, the Supreme Court can slap them down. We want to be very careful about thinking about what are generative ways of promoting these issues. So pushing issues too far too fast and getting slapped down can lead to very enervating kinds of losses, losses where we really sap our energy.

What we want to do is be building energy, building success.

And so therefore I would suggest being extremely wary at this point in our nation's judicial history of rushing to court with sort of avant-guard equal protection claims. I

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know there's a theory out there that because the Supreme Court has been moving forward in areas like sexual orientation, that this creates an opening to restore or to go back to the expansion of rights that we were seeing toward the end of the Berger court. My basic theory about this is a couple of things: One, that is very different than disability in terms of the degree of societal acceptance, right? So the bottom up theory has worked much better for sexual orientation than for disability, so therefore the job for the disability rights movement is to think about how to do the societal acceptance and embrace inclusion much better and much more strongly.

And in part that's because disabilities is fighting against something much harder. Cost issues, what a number of scholars have talked about as an existential dread or anxiety. So nondisabled people are much more likely to have an adverse reaction to disability than sexual orientation that differs from theirs, and that's just a much harder nut to crack but those are the nuts that need to be cracked before getting to the Supreme Court.

I will also say about the sexual orientation analogy, not only is there a big difference in terms of societal attitudes. There is a big difference in terms of the attitudes of one person who matters very much. And that is Anthony Kennedy. We had some opportunity, if the Garland nomination had been allowed to come to a vote, if we hadn't had this historic, really historic obstruction of the power of a President to nominate a Supreme Court Justice, we had the possibility that we wouldn't be living in Anthony Kennedy's world anymore.

Guess what? We still live in Anthony Kennedy's world. And in Anthony Kennedy's world, sexual orientation, that's just normal human difference and we embrace people across the spectrum. Disability remains very different. Disability is something we respond to with charity, with as he said, the better angels of our nature. If you remember his concurring opinion in the Garrett case, he said, yeah, I'm a really good guy, I'm saying that the ADA does not, in fact, enforce equal protection of the laws, I'm not allowing you to enforce the ADA in any meaningful way, but don't worry, because we all have to think really hard about how we can be nice to people who are lesser than ourselves.

Right? That's his frame. He is the person whose world we're living in.

So courts short term, I am nervous.

Okay. I am always a downer. I know I am.

[Laughter]

It's amazing to me. I always get invited back. But there are a lot of places I get invited to speak at once and I give my downer speech.

[Laughter]

That's okay. I know everybody else in the room will be an upper.

So legislatures. Agencies. States. Local governments. I think those are good policy levers to be pulling. And those are good areas to be pulling policy levers in.

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I think to me what's far more important than thinking about doing this within the frame of constitutional doctrine and constitutional equal protection doctrine in particular is to get the practices of states, of localities, of big institutions in the world and I don't mean residential institutions but I mean the way a sociologist would talk about it, folks coming together to do particular things, get those practices to be reflective of our understanding of what it means to have equality in the context of disability. Right?

So all of the advocacy everybody in this room does every day, you should think about as advocacy to overturn the unequal protection that people with disabilities receive in our law. And it's important to think about it that way and to talk about it that way. Right? So there may be all kinds of different doctrinal bases for the claims you're bringing. NFB had a nice victory in a case involving misclassification of workers in a sheltered workshop this year, right? At the Department of Labor. That was a very technical case about what the standards act means, but it was also a case about equal protection of disabled people under the law, and I think it's important to always be talking about it that way.

One of the things that the disability rights movement needs to do, I don't think is go into court and try to get the court to overturn Garrett. They're not going to do it right away. What I think the disability rights movement needs to do is make clear that all of the things we're doing, talking about the settings rules for HBC waivers, that's about treating people who have disabilities as equal to everybody else in society. That's saying everybody is an equal member of our society, and that's the way that we should be talking about it.

That's the way constitutional change happens. We get enough success with those kinds of advocacy than ten years from now. You know, the constitutional change will be easy. And that's the goal.

And also, talking about it in terms of the public, with the public as your audience. We've seen this some in campaigns against legalization of assisted suicide. Obviously an issue on which there are differences of opinion within and outside of the disability community. Most of the active engaged disability rights advocates have been opponents of assisted suicide being legalized, and the frame has very much been a frame of equal protection of the laws, if you think about it. In politics, generally you get into very quickly into abortion politics and that's often very uncomfortable for disability rights advocates who tend to be very strongly prochoice. Again, this is differences of opinion in this community on that issue as well but tend to be strongly prochoice with respect to abortion and don't want these issues to be thought of the same. So disability rights advocates who have opposed assisted suicide legalization have said, think about it in terms of equality.

Many of our old friend, Paul Miller, wrote this: If you are a person who wants to kill yourself who doesn't have a disability, what we try to do as a society is stop you, right? We have suicide hotlines. We have all kinds of efforts to provide you what you need to be living a life that is a life that you want to be living.

What does society do if you have a disability? Well, this is what Paul Miller said, okay, fine, go ahead, we'll help you out.

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And that is unequal protection of the law in a very core sense. And that's the argument you see from disability rights advocates here, and I think you can see that in other places. I think this kind of argument can be made to the public and other places.

So one area that's become very big, an important area of coalition between the disability rights movement and other social movements is police shootings. You have the Black Lives Matter movement, we're in Baltimore, obviously one of the epicenters of the Black Lives Matter movement, and one of the things the Black Lives Matter movement has done so well is focus attention on inequalities of police use of force and inequalities with regard to race, but there are also massive inequalities with regard to disability. Different estimates, but you know, between a quarter and a half of all deadly force police incidents involve people with psychiatric disabilities. There's no good data on this. That's one of the problems, but that's about the estimate. That's all police uses of force. And of course other kinds of disabilities are also significantly in the mix here. So this is an area where you can see using the idea of disability equal protection as a mobilizing tool and as a tool for appealing to the public.

And again, this is how constitutional change happens. I think too often in our society people outside of rooms like in and outside of independent living centers and ADAPT meetings and so forth, people outside of those places think about disability still, still, still, still as not being about equality. It's not about being equal protection of the laws but as about being nice to people, about doing well for people who are lesser than yourselves. An idea totally antithetical to the idea of equality.

I think about the last presidential campaign. We all know the Donald Trump/Serge Kovaleski, and then denied he did it. You see the ad Hillary Clinton ran immediately after that. What was the ad? I see Dr. Maurer getting up which means I'm about to get the hook.

[Laughter]

What was the ad that she ran after that? An ad that featured a person with a disability only as a child who didn't speak. The first time you see her, you see her in a NICU, in an incubator. The only people who speak are her parents, and all they talk about is how mean Donald Trump was. There's no sense of equality. There's no sense of everybody being equal. And that's the thing we need to change.

Only if we change that is the constitutional doctrine going to change, and that's what I have to say.

[Applause]

Thank you.

MARC MAURER: So if I have as many questions for Sylvia as I do for you, Sam, I don't know if we're going to get done in time.

Sylvia Lee came from Canada. Maybe she can tell us what the difference is between Canadian and American jurisprudence. You get a few minutes for that. But let's concentrate here on the 14th Amendment again. She's been doing international work

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as well as doing the basic work at the Disability Rights Education and Defense Fund. So here is Sylvia.

[Applause]

SYLVIA LEE: In 2001 we wrote an article examining the differences and approach between equal opportunity framing of equality that underlies the ADA. And the narrower formal equality of treatment used in U.S. Constitutional analysis. We'll just treat you all the same. That's equality.

From that you saw equality in legal analysis and disability discrimination requires irrational behavior.

In the article we contrasted this approach with a human right approach taken in international law and the constitutional analysis in the Supreme Court of Canada, which took a very deliberate step away from the intent requirements in the U.S. Constitutional law and recognized that under the Canadian charter of rights and freedoms, disadvantaged groups may need a benefit to enjoy equality.

Now, since that 2001 article, and when I started working at DREDF in 2000, there have been a number of changes obviously, two changes which I'll speak to here, besides me just getting older, and also here I'll stop and say this was intended to be an appearance by Arlene and myself. Arlene was going to cover a lot of the 14th Amendment analysis because she is brilliant at that.

Instead I'm here to offer you her great apologies for not being able to come. She was quite ill earlier this month with pneumonia and dehydration, etc., and while she is definitely on her way to recovering, her doctor directly told her that she should not be traveling. So even though she was really looking forward to being here with you and sharing her brilliance with you, I was tasked with being here alone.

[Laughter]

And so I'm speaking more -- I'm the icing on Sam's cake today.

[Laughter]

So please look at it that way.

[Applause]

SAM BAGENSTOS: It's a cake that needs some icing.

SYLVIA LEE: It's a really filling carrot cake.

[Laughter]

So one of the most critical things I wanted to say is that the U.N. actually passed, and its member states, the Convention on the Rights of People with Disabilities, the CRPD, in 2006, which is over ten years ago, amazingly. Right now the CRPD has 160 signatories, and 172 ratifications. The difference comes because some regions or country groups signed on and then the individual members still have to ratify themselves.

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There are 92 signatories and ratifications to the optional protocol which allows the CRPD committee to hear directly complaints from individuals.

So in case there's any question, the U.S. did sign the CRPD in July 2009. I think it was also honoring the ADA anniversary, but it has not yet ratified the treaty, and I think it's unlikely to do so despite the campaign promises of the current President.

[Laughter]

Just testing if you're listening.

[Laughter]

And the second thing is that since 2001 I've actually had the great privilege of traveling to a number of other countries, specifically to help them develop, strengthen, and implement their domestic disability rights laws. So DREDF in coalition with Mobility International USA, along with the U.S. Council on Disabilities and others are part of the Rights Now project, a project funded by the Bureau of Democracy, Human Rights, and Labor, at the U.S. Department of State.

We are operating in six countries. They are Armenia, Kenya, Mexico, and Vietnam, with Guatemala and Peru added just last year.

The stated purpose of the project is to bring learnings and technical assistance to other countries, all of whom have signed and ratified the CRPD, the most recent ratification was Vietnam in 2015.

But these are all countries who are struggling to get disability rights laws operational. This experience has been eye opening, and it's eye opening for seeing great similarities in the movement, in the struggle, and also great differences in the experience of the law and in how inequality is viewed.

And in the necessity for the rule of law and how the rule of law operates in these different countries.

So this is actually what I'm here to speak about. As mentioned, I'm from Canada. I got my law degree from Canada. I'm not going to offer you great insights into your constitution which I did not study in law school. But I do think there are really interesting things to learn from what's going on around the world.

So the convention, the CRPD, is undoubtedly a material equality approach, not formal equality in any way. It focuses on outcomes. And it takes a human rights approach that assumes the fundamental equality of all citizens, not based on status, based on birth within the species if you want to look at it as broadly as that.

So there are eight guiding principles that underlie the CRPD and I think it's really interesting to listen to these in relation to what you know of the 14th Amendment.

The eight guiding principles. First, respect for inherent dignity, individual autonomy, including the freedom to make one's own choices and independence of persons.

Two, nondiscrimination. That's just one of the principles.

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Three, full and effective participation and inclusion in society.

Four, respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.

Five, equality of opportunity.

Six, accessibility. Which is independent from nondiscrimination.

Seven, equality between men and women.

Eight, respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

The CRPD evolved through our process of work for a number of years with participants from all over the world, and you can see the benefit of that, that this is a convention that really was worked on by the community, all over the world, and they bring with them their experience and understanding of what does it mean to be equal, what are the things we need to be at the table and to be accepted as equal.

So like all international law, the CRPD is aspirational of course. It can also be galvanizing. So ratification requires reconciliation of the country's domestic laws with the aspirations of the treaty. It can take place over time, but as Sam has mentioned, really critical changes in law take place over time. The cases may seem to come and effect immediate change, but you don't get the decisions without change over time.

In a way, the CRPD becomes a lens, somewhat like a constitution, through which a country's laws can be interpreted. Of course different countries take the obligation differently.

I'm going to talk a little bit about Mexico, a little more about Guatemala, and if I have time at the end, a little bit about Armenia.

I have been in Mexico in October of 2015. I was in Guatemala in October of last year and will be going there again in May. And Armenia I have not been there but I looked pretty closely at their current law, their new law on people with disabilities, which, well, it's a bill. It's been a bill for many, many, many years, but it's been evolving through that time as well.

So Mexico signed the CRPD and ratified it quite quickly early on. It's coming up on its second reporting period. And there's a lot of activity there.

I think some of the chief issues in Mexico at the time, which we're hearing about constantly, is coalition building. The U.S. bureau -- the State Department does reports on other countries' human rights, and so Mexico does have a disability rights law. It prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, air travel, and other transportation, access to healthcare, the judicial system, and provision of other services. And this is one short sentence in the country reports. The government did not effectively enforce the law.

Okay. So there is inaccessibility, children with disabilities are not consistently educated.

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What we've gotten a lot from Mexico is the difficulty of forming longstanding coalitions, longstanding cross disability coalitions. Human rights and some disability rights groups are very much focused on deinstitutionalization, which is a critical issue there. The broader issues of accessibility are known but it's just difficult to form long lasting coalitions, and every time we go there, there are these issues of community, of who is sort of in charge. And probably international funding doesn't help. It doesn't help in the way that it's sort of given out, and then it becomes competitive as well. I don't know of a really strong national Mexican disability rights group or coalitions that have stood for long periods that are national. It doesn't mean that there are not really interesting things going on locally or that there aren't these activities and changes in municipal law that are happening, but this is at a local level or regional level. So you see in one country how the strategy has been really to -- and in many of these countries, the strategy is to work locally, to make changes where you can, to get kids into your local school and to get your mayor to make changes while you're friends with him before the next mayor come as long. So that happens a lot.

In Guatemala, which has been on my mind a lot since I was there recently and I'm going to go again, there's been really interesting activities there as well. There's a current law happening, there's a 1996 law in Guatemala, a disability law. I wouldn't necessarily call it a disability rights law, or you might call it that but there are no implementation mechanisms, so it's hard to see it as a disability rights law.

It's been on the books for a long time. Right now there's a new law being drafted that is currently passing through, and it's an interesting process. It had its last reading recently, and apparently the last reading is where all the changes can take place. So despite sort of sailing through two readings, this is now where negotiations are really going to happen. And it's fascinated to be in touch with a lawyer there who actively worked on the law, on its drafting, and has also been working on a disability rights case there.

She said that we are at a time when the discussion is open again, as there are doubts regarding the benefits of the law, including tax exemptions and bonuses for personal assistants for employees with disabilities. It's kind of fascinating to see how disability rights laws in other countries have taken lessons from the CRPD. Think of it. A bonus for personal assistants being written into a disability rights law. It's a reality for many people with disabilities that you work and you need personal assistants and it costs. But it's not necessarily taken account of.

And that the business sector is sort of coming awake to the fact that they may have what they call customer service obligations arising in the law. So these things are all happening, and they are actively working on it.

There is a disability discrimination case. The very first one that was won in Guatemala apparently, brought in Guatemala City, and it was won in March by this same lawyer, representing a plaintiff, William Zepeda, a blind individual with a guide dog, denied access to the Maya Excelsior Hotel in Guatemala City, so if you're going, don't stay there.

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A judge first heard the facts in January 2015, and then the case was heard -- and I love Google translation, was heard in the blurry personal court of criminal peace. I don't think that's what it was.

[Laughter]

But I have no -- I do not have Spanish and she has a certain limited English, so just letting you know.

So it was heard February 3rd of this year, and then I think it's really interesting to look at what she brought her case under, because the new law is not law yet. I don't think she even touched the 1996 disability law.

She used a criminal code, a discrimination offense under the criminal code in Guatemala. Any distinction, exclusion, restriction, or preference based on gender, race, ethnicity, language, age, economic status, religion, marital status, or any other reason, circumstance, or circumstances that impedes or hinders a person, group of persons and associations, from the exercise of a legally established right.

I have noticed that in translation, sometimes Spanish has more words than when I'm speaking in English. So that might explain this too. But her primary argument was based on a criminal code offense for which there was a fine of 300,000 Guatemalan unit of money, and the penalty can be increased by one-third under certain circumstances.

Her second line of argument was based on the CRPD, because it is a law approved in Guatemala, and it is superior, above, any internal commercial legislation. So article 20 contains assistance animals, so she used that as well.

A third was control of conventionality, which is a principle established by the inter-American court of human rights. So it's a regional human rights law that she used.

And then there's a fourth which she called a constitutionality blog. I'm not entirely sure what that is.

So Guatemala is a civil law system. All of the countries that we've been working in are civil law systems primarily. There's a mix out there in the world.

So she used codes and achieved a victory. The decision came down for the plaintiff and it was greatly celebrated because we do really get across, this is the first disability rights case in Guatemala. It wasn't just a complaint that was resolved privately between parties, which happens often. Many people with disabilities in Guatemala are often poor. Mediation is kind of a requirement apparently before going to court. And there's a settlement very early on for many of these cases.

So this was a deliberate decision by the disability community with a lawyer helping them to move forward with a case.

And that also is again what Sam was talking about, this kind of, yes, the law -- not necessarily the Supreme Court decisions or the constitutional decisions, but bringing these cases at a level where you can make known what equality means, where it becomes clear to people that it's all right to enter into hotel rooms and to bring the

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animals we need with us. This is part of changing the consciousness of a country, of a judiciary. It was a risk but one they took and won.

In Guatemala, it's fascinating mix because you go on the streets and everything is inaccessible. Every person I know there who uses a wheelchair is very good at doing. Hopping, when you pop your wheelie and get on the sidewalks, because you can't get anywhere without it.

They did have a larger, more systemic transportation case earlier in Guatemala City, where they tried to get really the new transportation system being built across the city accessible. What happened was they decided that, okay, your stations can be accessible, we'll have a ramp going up, but the stations in Guatemala City are often in the medians, with streams of traffic going on either side and there's no accessible way to get to the median.

So that's sort of the reality of what you're dealing with and you don't see people with disabilities on the street very often. That's another critical component. In many countries, disability is still hidden.

So I wanted to just briefly -- well, let's see, whether I wanted to talk briefly about Armenia as a contrast, again, because they have this new bill that they've been looking at for a long time.

I think one of the reasons for our article in 2001 was that Arlene really wanted to share with the world and countries who are embarking on this disability rights journey and writing law, she wanted to let them know more about the ADA and about this conflict between the ADA and its understanding that you need equality of opportunity and the constitutional understanding of it. And she wanted to let them know about it because she saw the world as having opportunities to start fresh in some ways, and other countries have to start from scratch, writing new laws from scratch.

But that's never really the truth. Other countries of course have their own history, their understanding of disability, their own constitutional legacy, and their own understanding of welfare and of disability.

And Armenia is such a striking example of that, because in their law, you have words that get across disability rights to some extent. There are laws that illustrate, yes, there are violations of rights, people have the right to be employed, they have the right to education, the right to access accessibility, but it's in the same law that continues to talk about three levels of disability status that have to be approved by the government because that's how welfare is distributed.

And because it's all so mixed up, you think, well, do you actually have to have a government disability status to bring a disability rights complaint? How do you disentangle those things? If disability is only understood through a lens of welfare and official sanctioned status, how do you get to true disability rights?

And that was one thing that the ADA was very, very clear about, was absolutely, this is not about welfare, this is not about benefits, this is about rights.

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And so I think in all these reflections, why am I talking about all these things, you know, some of it is really just to provide a certain level of encouragement, in fact, that you see these struggles all over the world. Brothers and sisters with disabilities that are fighting to become a community, that are fighting for political understanding and awareness and influence. Some countries are facing what could be called a first generation problem here, accessibility in the streets. But the root cause is the same and the need for people with disabilities -- the understanding of the community as the first and the last line of defense in the fight for rights is absolutely critical, and I think that's what Sam is getting at as well in what he's saying, that ultimately it's rooted in people with disabilities, the understanding of their rights and the understanding of what disability is, and the understanding of what equality.

And it's the community that ultimately has the responsibility of getting the rest of the world to see that. Lawyers will be your allies, and the rest of the world, the per capita number of lawyers per population is much lower than in the United States. So lawyers will be allies, but they're not as readily available in many parts of the world as they are here.

It's really the community. And that is the understanding of equality that has to inform any judicial decision, any Supreme Court decision. And it won't be through the case reporter. It will be with interactions in the judges' lives, with their children, with where they are in the streets. That's what I see and what people understand more I think sometimes in other parts of the world. They still need a law, and the ADA -- I still think it's the swiftest, most detailed way to have others seen. The most effective tool of getting people with disabilities their rights on the streets out so they're in the schools, in the workplace, but then there's still so much to be done after that.

[Applause]

MARC MAURER: Thank you, Sylvia.

Lou Ann, are you here? Somewhere, there should be microphones in the rows someplace. In other words, we can take questions, and please, the nature of this is to identify yourself and you get recognized when you identify yourself, please. Otherwise I get to ask Sam all the questions.

Any questions for Sam or Sylvia.

No? Well, all right. I've got one for you, Sam.

The language, it strikes me, as the Americans with Disabilities Act has troubles and the interpretation of it therefore has troubles. Which is to say disability is always thought of in the act as a thing that might cause undue burden.

So "burden" is part of the language, and "accommodation" is part of language. What can be done to change the nature of the thinking?

By the way, I don't think you're a downer in one sense. You said that in ten years we will have a change. If it only takes ten years, I'll be glad.

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But the thing is that the language of the cases, the language of the act, talks about accommodation, meaning that we're doing something for you, and then it talks about burden. And those things are very closely associated with disability, so instead of having somebody walk into a room who has got a disability and somebody else, oh, good, we have somebody else here with a disability, they all think, oh, no, what do we do now, here comes the burden.

How do we change this thinking process?

SAM BAGENSTOS: Yeah, I think that's in some ways the ultimate question here. And I think it's not just the language of the ADA, although the language of the ADA is very much about that. It is the way people in society think about disability, and I think -- and even judges. So this past week, this week, it's been a long week for me, but on Monday or Tuesday, the Supreme Court issued a decision in a death penalty case involving a person with an intellectual disability, and if you read Justice Ginsburg's opinion for the court saying that Texas shouldn't have been able to condemn this person to death, right, very liberal, progressive decision, her understanding of disability, and she's probably the best there is on the Supreme Court on this stuff, her understanding of disabilities, all the stuff you're talking about, Dr. Maurer, all about deficit, all about what makes -- and even she says, the Texas courts got it wrong to look at all the things this guy could do; what you have to look at his deficits.

That's obviously a particular context and there's more going on, but I think it's indicative of the general view of society on disability. And you're exactly right. The biggest thing that will lead to change here is to change that perception.

And part of it is policy, right? I mean, I think to the extent that we have policies that don't put the cost of accommodation on a particular employer or entity that feels like they have an incentive to turn away people with disabilities and treat people with disabilities as others, that's helpful. But beyond that, I think there's also just a need for a massive change in the way we think about the way the world thinks about stuff.

And you know, ten years, look, that was my optimistic moment, so...

[Laughter]

>> Don't back off it.

SAM BAGENSTOS: You know, I'm getting to an age where I can only think ten years ahead. When I was younger, I could think 30 years ahead. Now ten years is all I got.

MARC MAURER: Sylvia, do you have thoughts about this question?

SYLVIA LEE: I think the -- I mean, the ADA's concept of reasonable accommodation has been adopted all over the world. It's just an understanding that people with disabilities need a change in the way things are done.

And I think -- I mean, I guess it's changing the perception that change itself is a burden. Changing how you do things. And to a degree, it is. I don't know how to soften it so that it's not recognized. People who benefit from the way things are done now are always going to be burdened when you change it.

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I think it's trying to get people to recognize that it's a good benefit. It's a benefit that ultimately is good for everyone. But it means change.

So I'm not sure how to -- I certainly would -- I could not like take away the idea of reasonable accommodation or how it's needed.

SAM BAGENSTOS: Let me just say one thing. This reminds me of one thing.

I think a quality way of thinking about this is we have a world that was designed for and by a set of people with a set of physical characteristics and other kinds of characteristics. They design the world for themselves. It's not surprising, for example, that this building is designed in a very different way than the rest of Baltimore is, right, because of who was designing it and who they were thinking about.

And rectifying that may involve a cost when considered against the baseline of the status quo, and that's the thing people are focusing on, but it doesn't mean, you know, all it's doing is restoring a state of equality we should have had before.

And just the one brief example I'll give, I have seen because Justice Ginsburg showed it to me the memo that the long time dean of Harvard Law School wrote explaining why it would be too burdensome to admit women to the Harvard Law School, because they used to not. And the memo said, look, we would have to install women's bathrooms.

It's a perfect example. Now, obviously everybody now, bathrooms have become a more complicated thing, but everybody now understands that this is not a cost of women. This is just equal access. This is treating women as having the same rights and opportunities as men, and we have to get to a point where we think about disability in the same way. We think of a world where there are only men's rooms is not an equal neutral baseline, and same with the world that's not accessible to people with disabilities.

MARC MAURER: So now everybody needs accommodation. It isn't just the handicapped or the disabled or whatever we call them nowadays. There have been a lot of names for this crowd. Back after the Civil War, they were known as the invalids, but that's the American Civil War that happened in the 1860s, in case you want to know.

[Laughter]

But look at all these lights we got around here. I don't need those things. Look at all these accommodations. Why do we have them? Well, we need them in here. We're rebuilding this place at the moment to get more windows in it because somehow that's important. To me, not so much.

[Laughter]

But to a lot of people. I mean, accommodation for every soul on the planet. You wouldn't need a bathroom in the place at all if we didn't have people in it.

[Laughter]

But here we go. We've built the building so people could be in it, and that means we accommodate everybody that walks in the place. Or rolls in. Or however you get in.

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So this thing about how it is that we only talk about accommodation when the disabled are involved, this annoys me, and that right next to it is this thought of burden, we build it right in to say there's a burden. Well, yeah there's a burden. Sure. Everybody causes a burden. Now, there are other things to talk about. Anybody else have questions? I know I've made my speech.

>> Okay. Jim.

Sam, in 1991, I was at a graduation party for a young woman at Columbia, and I happened to meet her Uncle Tony, who turned out to be Anthony Kennedy. There were 20 people in the men's club that managed to let women in for the event because Uncle Tony was a member.

He sought me out in this group. We spent about 3 hours primarily just the two of us chatting, there were drinks, scotch, cigars involved. He was incredibly engaging, didn't talk about himself or things much. He was asking me questions in one of the most intense conversations I've ever had. We talked a lot about healthcare. I was premed at the time. He was curious about the discussion going on in politics around that. But he wanted to know I wanted to be a doctor, how I might accomplish that, what I would need to do. Why doesn't he get it. Why several years later, why don't the other justices get it?

SAM BAGENSTOS: Yeah, I don't know. So I mean, it's true. If you meet Justice Kennedy, he's a very engaging guy and a curious person. But he has a set of views about the world.

I don't know. I think this is something, again, we thought maybe we weren't going to have to figure this out, but now we do again. So I don't know the answer to that.

But it's a really -- I mean, it's not that anybody on the court is incapable of understanding these issues. It is simply that they see the world in a very different way. And how to change that worldview I think is hard and takes place over time.

MARC MAURER: Somebody else has a question.

>> Yes. My name is Michelle Villet. I'm an attorney but I'm here more as a mom, actually.

I listened with interest to what you had to say, and I think perhaps all the attorneys and lawyers and people in this room, when they're practicing, would it be helpful, you think, to try at the very community level and at the first line court level, try to establish a separate legal standard? My daughter is blind. But rather than saying a reasonable man, is it possible to promulgate something like, the reasonable blind man? And to try to get that concept into the legal lexicon and that sort of thing?

Because people do get it if you sit and talk with them one on one. It's just when they get into the courtrooms and they get into the precedents and they get into what they were taught in law school that that sort of gets clouds because they put on their professional hat. If you explain like she's in school, in a very demanding scientific curriculum, and when you talk to the professor and say, look, she can't get this figure of a hand and an

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extremity on a test because she's never seen it before, then it's like, oh, I just didn't think about that.

So you can maybe try to establish certainly an equal with no burden attached, but simply a blind reasonable standard or a wheelchair reasonable stand order or something like that that talks the legal language in the lingo.

And the other is just a comment. I have found over watching my daughter over the past ten years that if anybody in here is designing anything, and the only person who understood this was Bill Gates, design it for the blind. If the blind can do it easily, everyone else can do it so much more easily, and the marketplace simply opens. I mean, look at Siri. Who wants to drive? Who wants to type? The blind have an extraordinarily valuable leverage if they would just learn how to exploit that with industries anywhere. Because if you guys can do it easily, the rest of us, it's something we would rather have and we would rather do our work and our day-to-day living in this manner, if it can accommodate someone who is blind.

MARC MAURER: So, Sam and Sylvia?

SAM BAGENSTOS: A couple things. First of all, on that last issue, I think NFB has just done an enormous job of providing leadership on those issues of getting companies that engage in technological development to think of blind people as a central part of the folks they're designing for. And Dr. Maurer's incredible leadership when he was the head of NFB, and this continued.

I think that's very important.

Thinking about what's the right legal framework to think about this. Actually, a reasonable blind person makes me think of Jacobus tenBroek's article the rights to live in the world of disability torts, which is all about tort law, probably the first article about disability rights tort law ever. And thinking about the way that courts think about disability and in that case he was very much motivated by his own experience as a blind person, and what he sort of -- the takeaway I always got from that article was, look, to fail to think about the disability of the person who is involved in the case is a problem, but to think that people have a lesser right to go about the world or have lesser standards apply to them because of their disability is also a problem. It's really framing very nicely the fundamental questions of disability rights law that we're still working out.

I like to think about, when we're talking about accommodation issues, I think what the accommodation duty does is it forces all of us but particularly forces the folks who set up rules or physical structures or whatever to think, well, why do I have this thing. Like why do I have this test that asks can you draw a hand. Right? Is it because I think that to really understand the subject you need to draw a hand or just because I haven't thought of any other way to test on the subject? So taking a different disability context, why do we have one-hour tests? Is it because we really think people need to answer questions in an hour and that's telling us something about them, or is it because class times last for an hour, and it's easier to administer one-hour tests.

So the accommodation duty really forces us to think about, what are we trying to do and is the way we're achieving the thing we're trying to do excluding people who shouldn't

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be excluded, who really are equal with regard to the thing that we're really trying to do, and I think that's the fundamental question here.

>> Hi, this is Suzanne Silverstein from AARP.

MARC MAURER: You're the last one, because we're about to run out of time.

>> I will say that I'm not saying what I will say next in any official capacity. It's probably analogous to the fact that I've worn out my "angry" button on Facebook the last few months.

And I think that this follows up on what both of you were saying about, you know, the legal framework has become very much a, you know, how do we go in their defense about how is this not a fundamental alteration, how are we going to defend that it's a reasonable accommodation.

But following up on what the doctor was saying, I mean, Nina Cohn has several articles on elder law as a civil right, and obviously this is stating the obvious. We go back to the roots of disability law as a Civil Rights Movement, but this is really founded on the right of our bodies to be in the same space as every other body. You know, whether you have legs or don't have legs or see or don't see. And I think it's really important for us to carry that into our legal work. And even if we're making arcane legal arguments or talking about legal precedent, there are always going to be the people who are going to look at it from the corporate side of, well, this is the way we've done our business and we are asking us to make changes to our business.

All of those business models came before the civil rights laws. I'm mostly a housing attorney and I do a lot of assisted living work, and the first thing I often say now when I sit down to a negotiation is to say that their assisted living model was a move forward or an invention that started or was put into place before 1988 and it has not adjusted to the new legal framework. So we're really going back and we're reimposing a framework of equality on top of an industry that was there before and it has to change.

So I mean I think that we just have to go back to the fact that every single human being has a right to be in the marketplace, has a right to be in the community, and that these questions of accommodations are just the framework for how we start moving things along, but we can't forget the underlying premise and I think that sometimes saying that to the court, reminding them that we're not asking for special treatment, we're asking for where we belong and we're there to show them how the law is the framework for moving this along and how Congress said is a fair way to make it happen since 1990, we're not here to debate whether it should or shouldn't happen.

MARC MAURER: I bet the panel members agree with you.

>> Sorry.

MARC MAURER: Thank you, Sam and Sylvia.

[Applause]

We appreciate your time very much.

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>> Stating the obvious.

MARC MAURER: And will the next group, Linda and Scott and Mary-Lee, come up.

Larry Paradis. He has been at these gatherings, and he was for me a friend. To talk about him, I think which one of you is going to begin.

So Linda Dardarian, partner of Goldstein, Borgen, Dardarian & Ho, Scott LaBarre who is a partner at LaBarre law practice, and Mary-Lee Kimber Smith of Disability Rights Advocates. We'll start with Linda.

SCOTT LaBARRE: Mary-Lee.

MARC MAURER: Okay. Mary-Lee, why don't you begin.

MARY-LEE KIMBER SMITH: Sure. Good morning. My name is Mary-Lee Kimber Smith.

We are honored to be here to talk about Larry. Knowing what we do about Larry, he would probably feel slightly embarrassed by this, but I know he would also really be honored to have the respect of his colleagues in this room.

So Linda and I are going to talk a little bit about his life and his legacy, and I'll turn it over to Linda.

LINDA DARDARIAN: Thanks, Mary-Lee.

I've had the privilege every knowing Larry for a couple of decades as a colleague, as a friend, as cocounsel, and as a member of the board of directors of Disability Rights Advocates.

My experience with Larry, similar to that of all of you who knew him, is that he really was a rare gem of a person. Larry was a brilliant and creative litigator and legal strategist. He was a powerful advocate while at the same time being a truly decent and kind man.

Larry was profoundly influential is in ways, and I'm just going to focus on a couple of them.

First, 24 years ago, back in the early days of Bill Clinton's administration in 1993, Larry cofounded Disability Rights Advocates, which under his leadership and due to Larry's very hard work and dedication, has grown from a tiny outpost in another law firm with just three people and has grown into a litigation powerhouse, a true institution, with two offices on two coasts doing groundbreaking impact litigation on behalf of people with disabilities all over the country.

And second, Larry has successfully litigated landmark precedent-setting cases that have literally changed the landscape for people with disabilities in all facets of contemporary life.

Larry always took on cases that were novel and hard fought, and in pretty much any area of disability rights, there is a precedent-setting decision with Larry's name on it.

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For example, in Barden versus Sacramento, Larry established that people with disabilities have the right to access sidewalks and curb ramps freely and independently to travel in the pedestrian right of way and not risk their lives.

In Baits versus UPS, Larry established the rights of people who are deaf and hard of hearing to have jobs as delivery drivers.

In NFB versus Target, Larry and the team established that people with disabilities have rights in cyberspace.

In California council of the blind versus Alameda County, Larry established that people who are blind have the fundamental right to go to their polling places and vote independently and privately without the interference or assistance from a sighted person.

In Lieber versus Macy's West, Larry set the standard for providing access to merchandise on display racks.

And recently in NFB versus Uber, Larry convinced the court that the mandates of Title III can apply to players in the gig economy and in Larry's words, companies cannot ignore the rights of people with disabilities because those companies use a new technology or a novel business model.

Those are just some of the highlights of Larry's body of achievements, which are so broad and so substantial.

He also had significant victories in recreation, healthcare, education, and transportation, and he's provided the foundation for the rest of us to build on and use to achieve access in other cities with other retailers, with other educational institutions and healthcare providers, allowing his impact to spread even further throughout the country.

Larry did this through careful and strategic thinking, developing legal theories to apply to emerging issues. He based his theories in his deep and broad knowledge of the law. Larry studied every single case issued in the area of disability rights. He knew legislative history. He knew regulations and regulatory history, and he used that strong foundation in the law in order to push it further.

He was also a master in the courtroom, not by being flashy or theatrical, but by being down to earth, conversational, knowledgeable, and credible.

Larry was extraordinarily accomplished, but he was also modest, understated, and easygoing. He was one of the country's most successful civil rights litigators. But he was always a very kind and decent person, never an egomaniac or a jerk.

Larry was very caring. He loved his work. He loved this legal community. He loved this conference. Traveling cross-country was very hard for Larry. It was difficult and dangerous for him. But he regularly flew across the country in order to be at this conference because he valued all of us so much, he valued this community, and he found getting together at this conference to be so enriching.

And he loved making people's lives better. In that way, Larry was a huge success. As a lawyer and as a friend, he made our lives better. And he continues to do so through

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his example, his inspiration, and the foundation he provided for us to carry on his legacy, fighting the good fight, and supporting one another the way Larry did.

Mary-Lee?

MARY-LEE KIMBER SMITH: Thanks, Linda.

The amazing part about Larry too is that while he was doing everything Linda just described, he somehow made time to mentor so many attorneys. And Larry was my mentor and then later on a colleague and a good friend.

My legal career always included Larry. I started as a summer clerk at Disability Rights Advocates. Larry taught me so much, including how to measure the running slope of a curb ramp, which was fascinating.

Despite this, I knew I wanted to go into disability rights litigation. So I still do know how to measure that running slope.

And then during the 12 years that I worked with Larry, you know, he continued to teach me so much and he really molded me into the attorney I am today and for that I am indebted to him.

I want to take a moment to share with you a little bit about what it meant to be mentored by Larry.

Larry was always there for you as an attorney. He was there during my first oral argument to the court. He sat calmly beside me while my voice cracked and my hands shooked, and I looked like a mess.

But nonetheless, at the end, he shook my hand, ignoring the sweaty palms, and congratulated me, because that was how Larry was. He only saw the best in people.

Larry was there for my first very contentious meet and confer with opposing counsel. Afterwards I went into his office holding back the tears and saying, "I just don't understand why they don't like me!"

He understood. It was tough. You're a new attorney. He just nodded and said it would be fine, and it was.

Larry was there as I worked on my first case. He was there through trial, intake, settlement. It was a great settlement. I guess the California Department of Transportation. And I used to always say, what Caltrans taught me is what I needed to know about the law, but the more I reflected on it, it had less to do with the case and more to do with Larry Paradis because he taught me what I needed to know about the law.

Larry was there also as I branched out and found my own interests, developed my own ideas, some flopped, others succeeded.

And his last day in the office, I consulted him on a case. I went into his office and he was so incredibly supportive. And he told me that it was time to start to trust my own

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instincts, which will stay with me forever. No matter how insecure I feel, I know that Larry taught me well.

The amazing part about this is I'm not the only one. He did this for countless other attorneys. He felt it was part of his work to raise the next generation of civil rights attorneys.

And looking back, he did a great job. Not just at DRA but beyond. The lives he touched of so many attorneys in helping them develop who they are today was amazing.

Throughout the time I worked with Larry, I would also like to think I learned about Larry and not just about the law. I saw his courage. The fact that at legal argument or a case had never been done before completely energized him. I saw his compassion because for Larry it was all access that mattered, no matter how insurmountably big or seemingly unimportant.

And then I also saw his humanity. His kids' artwork in his office and his final letter to the disability rights community.

And even though I miss him and actually because I miss him, I feel like it is my responsibility, actually our responsibility, to continue Larry's legacy and as he put it in his own words, so that the dream will endure. I take that to heart, and we will miss him sorely, but the legacy and the work he leaves for us is really amazing.

[Applause]

SCOTT LaBARRE: I first met Larry when the American Bar Association still classified me as a young lawyer. So that was a while back.

I met him because the ABA commission on disability rights was presenting to Larry and Disability Rights Advocates its Paul G. Hearne award. We were in San Francisco. And Larry went out of his way to come and meet me and talk to me about my practice and what I was doing and the ABA at that time and so on. And I was struck by his curiosity and his true willingness to get to know other lawyers with disabilities and to help promote other lawyers with disabilities.

I cocounseled cases with Larry, and learned that he truly was the quintessential role model attorney. He was an extremely zealous advocate, and, in fact, because of that zeal, I have had the very enjoyable experience several times of discussing strategy with Dan Goldstein and Larry. And most of the conversation was between Dan and Larry, and I think they both got more gray hairs as a result.

But what resulted from those conversations and those strategy sessions was indeed the best strategy for our clients in those cases.

I am currently chair of the Disability Rights Bar Association. I'm a founding member of DRBA. So was Larry. And if it weren't for Larry and many others but in particular Larry, we wouldn't have the strong organization that we now have.

There is so much we can say about Larry and the great work he did. But the great testament to the true person he was is the fact that his spirit is most definitely in this room and will be for a long time.

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So tonight at our reception, I hope all of you will join me in a toast and raise our glasses in honor of Larry.

[Applause]

MARC MAURER: That does bring up the subject of -- thank you very much, Scott and Mary-Lee and Linda.

I would have been glad to welcome Larry back. He would have enjoyed it too.

We do have a reception tonight. We do have five workshops coming up between 11:00-12:00. We do have coffee in the place where we had breakfast, and in that place, along about noon we're going to have lunch and a keynote address. So if you could prepare for all of that.

Once again, I will find out if Lou Ann is back or not.

LOU ANN BLAKE: I'm here.

MARC MAURER: You made it. This is only the third time I've wondered.

Are there any announcements that I've left out?

LOU ANN BLAKE: I don't think so.

MARC MAURER: Okay. In that case, we're adjourned for coffee.

[Break]

Fourth Floor Conference Room

11:00 a.m.

KAREN PELTZ STRAUSS: It just generally covered telecommunications services, everything from the telephone to fax machine. It also covered interactive voice response systems, you know, press one, press two, for different information. And did direct that access be incorporated early and consistently and that there be some -- where an entity had product trials or product -- any communication with the public to determine the market for the product, that they had to include people with disabilities.

So it had some good things associated with it. It was actually adopted miraculously in the same bill that virtually deregulated everything else in telecommunications, except for the captioning section. Those two sections were the only regulatory provisions of the legislation.

Do you want to maybe show her a seat.

Okay. Jumping ahead again to 2010, we had another opportunity to go to Congress, and we'll talk about other laws.

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Around 2000 of course the internet started exploding. Some of us realized that all these laws...

>> I have two questions. My name is Shelby, and I work with Herb. Your ACS, does that cover video phones.

And my second question, the real time text, in prison, the TTYs, real time text is not going to be able to be used in the prisons. So what are you going to do to replace the TTYs there? Like what's going to happen with that.

MARC MAURER: Now, the FCC was taking a position on book readers, especially book readers that connect with the internet. Do you know where we are with that?

>> It's worth noting the waiver is limited to really narrow concept of devices. It doesn't have a screen, no camera, doesn't have any ACS features, and is marketed only as a reading device.

>> What does ACS stand for?

KAREN PELTZ STRAUSS: Advanced communication services.

Last question.

>> I'm curious about sort of the scope of the covered entities. You might have an Apple that has a device that has advanced communication services on it in partnership with a bunch of other developers, right, like a Facebook app.

What is the scope of the enforcement? Like would the agency be going after Apple or could it also extend out to the partner services that are coming along?

KAREN PELTZ STRAUSS: I'll be here all day if there are other questions.

SMS.

ELAINE GARDNER: Right, right.

>> Remember they made mistakes at the academy. Doesn't matter.

[Laughter]

Didn't get that one right.

ELAINE GARDNER: That wasn't on us, I don't think.

KAREN PELTZ STRAUSS: I can't begin to tell you how much debate there was about those words in Congress.

The NDBEDP, which you get to say a lot at the FCC and get used to it, the one thing wonderful about this is it does not only require the distribution of assistive devices but also allows for mainstream devices, computers, iPads, and other devices right off the shelf with multiple functions are also covered.

ELAINE GARDNER: Elaine.gardner@fcc.gov is my email. I'm happy to send you the slides.

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Www.fcc.gov/cognitive-disabilities. You can see more information on this important issue.

>> I have a fairly stupid question. Is the FCC the only rules that apply to like cable companies and cable boxes? Or are they also covered by the ADA? Are there potentially alternative remedies?

KAREN PELTZ STRAUSS: For cable boxes, FCC.

>> Is it preempted?

KAREN PELTZ STRAUSS: The question has never come up, butt ADA doesn't cover equipment.

>> There's some case law on that.

KAREN PELTZ STRAUSS: I mean, if you asked us about whether it covers television programming, that might be a different question because that came up in the NAD case, and they used the ADA to convince Netflix to settle. So that's a different issue.

But equipment is usually under our jurisdiction.

There's one more program that we didn't mention that I should, and that's direct video calling, a fairly new project started under Wheeler but is being carried forward under Chairman Pai and that's an effort to get federal agencies and corporations or businesses that have customer call centers to hire people who know sign language, preferably people who are deaf who use American Sign Language, to receive calls in video rather than have to go through the relay. And we actually have this now at the FCC. We have 2-3 people actually that receive video inquiries and complaints so they don't have to go through the relay system, and the number of complaints or the number of people using this versus relay has risen by 500% over the last couple of years, and the length of calls has gone down because the calls are much more efficient, private, accurate.

So just something for you to know about.

>> I just wanted to follow up on your point about the opportunity for text to 911 litigation. The National Association of the Deaf have a lawsuit right now against multiple entities in Arizona about the text to 911 issue. If anybody on the list would like to see either the complaint or that link, I would be happy to send that out.

KAREN PELTZ STRAUSS: That's great.

>> Lots of state public utility commissions retain authority over 911 in their states and we have had success highlighting the success of this lawsuit to public utility folks who are very concerned about getting 911 call centers to upgrade their equipment for other reasons.

KAREN PELTZ STRAUSS: And we're also hoping that the real time text rules provide more impetus. We know a lot of states or state localities are using SMS which we don't think is as effective because you have to press send, and in an emergency, you may never get to press send. RTT, the operator is getting your text as you're typing it. And

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we've heard that some of the 911 centers are just going to jump over SMS and move to RTT, which will be a lot more effective.

>> I'm Deborah from NAD. Another question about real time text. Many people don't have a voice plan with their phone. Does RTT require a voice plan?

KAREN PELTZ STRAUSS: That's a really good question, and I don't know the answer to it. It shouldn't. I would think that it doesn't. But we'll have to look into that.

Is that it? We should probably close, then. The keynote is in the other room. But thank you so much. Again, we'll be around.

I have two paper copies of the presentation that I brought if anyone wants it.

[Lunch]

MARC MAURER: I hope lunch suits you, and I would point out that there is probably more of it if you're famished.

But we're about to move to the item on the agenda which has to do with the luncheon address, which we have come to expect as a high light of the symposium itself. Eve Hill is our presenter today, and, you know, I've introduced her on many different occasions. She is currently a partner in the law firm of Brown, Goldstein & Levy, and she is taking on a task which in recent times and for the past 30 years or so Daniel Goldstein has been managing. It isn't that Dan isn't managing it at the moment; he is. But he keeps threatening to retire.

[Applause]

[Laughter]

I've discussed his retirement with both him and others, and some have more faith in it than others, but Eve is coming to work in the space that Dan has so ably held.

She served as deputy assistant Attorney General for the United States in the Department of Justice until recently. She sought to break down the barriers that interfere with the capacity of people with disabilities to participate equally and fully in our society. She worked extensively to extend the integration mandate of the Olmstead decision, especially with respect to segregated employment and segregated education.

She is known for applying the ADA to emerging technology areas, the criminal justice system, professional licensing, child welfare assistance, high stakes testing, and she has been an aggressive advocate for improving access to technology, websites, education, and the right of people with disabilities to age in place.

She is also the author of a case book, in case you need to know what the law is with respect to disabilities. Her book will help you know.

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I've introduced her to make presentations numerous times, and it has been a pleasure always to do it, because she brings an inspiration, a fire to the presentation she makes, and she thinks that equality before the law should mean precisely what it says.

There is one other distinction that I am fond of remembering that I thought I would bring to your attention, and it is this: Eve Hill is the only assistant Attorney General of the United States that I have ever hugged.

[Laughter]

With these things in mind, here's Eve Hill.

[Applause]

EVE HILL: All right. I'm using new technology, so be prepared.

So I'm back...

[Applause]

Actually never been away. I am one of those people who has been at the tenBroek symposium every year since it started, but in different roles. First as part of the Burton Blatt Institute, where I worked with the NFB and helped manage the DRBA, which I'm so happy to see has thrived under its new, much more confident management.

But for the last five and a half years I've attended as a representative at the deputy assistant Attorney General of the DOJ's civil rights division, and I was honored in that position to be able to work with colleagues at the civil rights division, some of whom are here today.

[Applause]

Now, those career federal attorneys have worked tirelessly at administration after administration to move the civil rights of people with disabilities forward. And I have told them and I will tell you, if anybody says anything bad about them, the career civil rights division folks, they should tell me, and I will put a stop to it.

I think what I said was, "I will take them out."

[Laughter]

So now I'm proud to be a partner in the law firm of Brown, Goldstein & Levy, where I am so lucky to work with the NFB and fantastic colleagues so much smarter than me, it's a little intimidating, to advance the rights of people with disabilities through litigation, counseling, and consulting.

And I'm so happy to be able to collaborate with all of you again. I have missed that ability. You remember the conversations that we had, the meetings we had, where you would tell me everything and I would nod and not say anything...

[Laughter]

Well, that's over.

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[Laughter]

Maybe you've watched my Facebook posts. It's like, I have an opinion and I'm going to tell everybody!

[Laughter]

But you are some of the most brilliant, thoughtful, creative, and kind and warm and forgiving of your colleagues' people in the world, and I've seen that over and over again and I can't thank you enough for it and I really look forward to being in that really warm advocacy, creativity, and thoughtfulness again.

I may be the luckiest lawyer in the country to have been able to do all of these really wonderful things.

I want to talk a little bit about the ways things have changed since the first tenBroek conference over ten years ago, and unlike Sam, I'm going to try not to be a downer about it.

For one thing, the disability rights movement has been recognized through international law through the CRPD, adopted a little over ten years ago and ratified by about 170 countries. So those rights have also been recognized and incorporated into the international development goals that will really support them.

And then the Marrakesh treaty to facilitate access to public works for persons who are blind or otherwise print disabled, rather long title, was adopted almost four years ago, requiring member contracting companies to introduce a standard set of limitations to copyright rules to allow the creation and distribution of published works in accessible formats and permit exchange of those across national borders. In the goal of ending the book famine for people with print disabilities. That's been ratified and went into effect last year.

For neither of those is the U.S. one of those ratifying countries, but we're still working on that, right?

And the ADA had its 25th and 26th anniversary, highlighting its impact here at home. As my boss said at the 25th anniversary celebration we had at DOJ: By inhibiting discrimination and ensuring opportunity, the ADA has opened doors and brought dreams within reach. Indeed, the true promise and power of the ADA lies in its ability to empower individuals with disabilities to dream bigger and to enable them to pursue their visions of the American dream.

And DOJ and disability advocates and attorneys have made clear over the last ten years in the course, in the halls of government, and on the streets that the requirements of the ADA number one apply everywhere, not just in big cities or government agencies, but everywhere; that they protect everyone who faces discrimination because of a physical or mental impairment, not just those who can't work or those for whom judges feel pity or charity; and that the ADA covers all the activities of covered entities, including criminal justice and arrest, as I said in one White House speech, stop arguing about it, including in health and employment services, including in parental rights, in education, in high stakes testing, the practice of law, and yes, the internet.

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And over the last ten years, the Supreme Court's explanation of the ADA's integration mandate has been made real in the world. Tens of thousands of people have been allowed to leave institutions and rejoin their communities and tens of thousands more have avoided going into institutions in the first place.

States and localities have permanently changed their systems for providing services to people with disabilities as a result, and that community inclusion and visibility of people with disabilities in their communities is having and will continue to have an impact on the attitudes of everyday people, and that everyday people attitudes impact really changes the world.

I really believe, for example, that young people today think differently about people with disabilities than young people did just ten years ago. And certainly than they did 30 years ago where all the kids with disabilities got on the short bus and went away to another school, never to be seen again.

DOJ, advocacy organizations like NFB, NAD, and the protection and advocacy organizations, individual advocates, private attorneys, and even state and local governments have adopted these approaches to disability rights. And some courts have as well. At least in some cases.

This is where I get into a little bit of the downer situation. I think Sam is right, that courts, including the Supreme Court, have largely not changed their thinking about disability rights and disability in general, from one based on charity and pity, being nice to people with disabilities as long as it's not too inconvenient, to one that's about rights for people with disabilities and recognizing that we have been denied equality for too long and that more than charity when it's not inconvenient won't do the trick, more than charity is required.

And just because I've been on this terror for a little while and I can't let it go, the Supreme Court judge nominee Judge Neil Gorsuch is an example of that approach.

So that's not what the ADA is about, but that's what many judicial opinions seem to be based on. Are you disabled enough to deserve my pity and my charity and the extra things I may have to give to you like, I don't know, equality? And even the two special education cases from the Supreme Court in the past month or so, that we are hailing rightly as great successes, arguably reflect some of that framing.

So the Frye case says the IDEA doesn't occupy the field of disability in education. So students with disabilities don't necessarily have to go through the IDEA administrative process with their ADA and 504 claims.

So the IDEA is based on constitutional requirements of equal protection. Equal protection. And due process. As is the ADA. But the ADA has been long treated not as a civil rights law but as a funding statute. Essentially as a bribe to states to serve students with disabilities, a way of encouraging them to be more generous to students with disabilities, to be nicer and make it less inconvenient for them.

But the ADA has kept much of its equal rights framing. So the question before the court in Frye was whether the more charity funding based law, IDEA, would trump the rights

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and incorporate -- not incorporate, but subsume the rights of the ADA in the education context. And for some time courts have seemed to believe that the equal opportunity requirements of the ADA were subsumed into the IDEA requirement. So every ADA claim had to go through the IDEA administrative process, even though the ADA requires different things, has different claims, and offers other forms of relief, notably traditional civil rights forms of relief such as damages.

And the ADA doesn't allow those forms of relief, doesn't address many of those claims.

And so they refused to follow the IDEA's statutory language that says ADA claims would not need to be exhausted if they did not seek the same relief as the IDEA.

An 8-judge Supreme Court, and I will say that a lot, because I'm not hating it as much as I thought I might.

[Laughter]

In an opinion that has been rightly hailed as a victory, that ADA cases don't necessarily need to go through the IDEA process, that's great, but it didn't say that the distinction is based on the relief sought. The relief sought is the choice of the person with the disability or the situation in which they find themselves. But on whether the underlying violation could have been addressed through the IDEA FAPE requirement.

Neil Gorsuch's court has been holding that virtually all ADA claims in education have to go through the IDEA process, even if the IDEA offers no remedy for the violation.

So this is a victory for disability rights, the Frye case. But it shouldn't be because the ADA is different from the IDEA, requires different things, provides different remedies. That's what Congress said. That's what advocates demanded. That's what students with disabilities need.

But the Supreme Court is giving primacy to the "be nice if it's not too inconvenient and the government pays you" approach to disability rights instead of the "get what the law provides for you, whichever law it is" approach to civil rights.

Even more clear I think is the Endrew F opinion. Which said you need a meaningful and appropriate education, like it said in the statute. And not just a merely more than de minimis education.

Judge Gorsuch created the merely more than de minimis standard. Saying in the case that for a kid with autism, the fact that he was progressing in almost 25% of his IEP's goals was sufficient. Even though he was regressing in the remaining goals.

Between the rally decision where the Supreme Court said a meaningful education was something less than maximizing the child's potential, and when Judge Gorsuch decided that a meaningful education was merely more than a de minimis education, Congress amended the IDEA several times and said things like, high expectations! Progress from grade to grade! Progress in the general education! And equal! And equal! And equal!

What else did they need to say?

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So advocates argued in the Supreme Court that the real standard for the IDEA should be high. Equal. Or at least substantial.

And the Supreme Court said, well, we don't really know what appropriate or meaningful means, but it means more than de minimis. So yea, it means more than almost nothing!

[Laughter]

And that's great, because we were living with just more than nothing.

But is that what anyone would set as the standard in a civil rights law? Enacted pursuant to the equal protection clause?

So this is where we are. This is not where we would have expected to be.

So I think this reflects that we are a little behind in changing the attitudes of judges from the charity/pity-based model which only covers people with the severest disabilities and only provides remedies when it's not too hard for us to do it, and changing those attitudes from that to equality-based. What do we need to do, recognizing that we as a society built ourselves, our buildings, our technologies, our education system, everything, on an assumption that people with disabilities would not be there. And that it is not the disability that is preventing access; it's the fact that we built them out and we, society, have an obligation to build them back in.

[Applause]

So we have a group of stakeholders that's not getting our message, judges, and it's likely to become more and more important than ever in the coming years.

So rather than be, I don't know, depressed, blah, blah, blah, because that's not what I am, I'm going to quote from President Obama on the 50th anniversary of bloody Sunday on the bridge in Selma, where we were facing a lot of racial division in this country and continue to. Had a number of police shootings. Very active Black Lives Matter movement.

And he said, if I can get through it without crying, "Selma teaches us that action requires that we shed our cynicism. For when it comes to justice, we can afford no despair or complacency. Intimating that bias and discrimination are immutable or that it is inherent to America. To deny our progress would be to rob us of our own agency, our responsibility to do what we can to make America better. This is work for all Americans and not just some, not just whites, not just blacks," and I would add not just people with disabilities. "If we want to honor the courage of those who marched that day in Selma, then all of us are called to possess their moral imagination. All of us will need to feel, as they did, the fierce urgency of now. All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children, and if we make such effort, no matter how hard it may seem, laws can be passed, consciences can be stirred, and consensus can be built."

President Obama went on to describe who we are as a nation of dreamers, who make our dreams of a better world real.

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I would say we are the Paul Millers, the Larry Paradises, the Jacobus tenBroeks, the Justin Darts, the Paul Hearnes, the Helen Kellers, the Laura Hersheys, and the Harry McBride Johnsons, who shook the systems until the law reflected the truth.

We are the people Emerson wrote of, who for truth and honor's sake stand fast and suffer long, who are never tired so long as we can see far enough. That's what America is.

[Applause]

Because the single most powerful word in our democracy is the word "we." We the people, we shall overcome, yes, we can. It is owned by no one. It belongs to everyone. Oh, what a glorious task we are given, to continually try to improve this great nation of ours, and that is the task that we are given. Administration to administration, against opponents who virulently debate us, against people who just don't understand, with allies of all stripes, that is the task that we have in front of us, and I am so happy and optimistic that this group are the people to do it.

Thank you for letting me play with you.

[Applause]

MARC MAURER: So I have a question for you, Eve.

EVE HILL: Uh-oh.

MARC MAURER: Are you willing to take questions if people want to shout them out?

EVE HILL: Sure.

MARC MAURER: So let's hear what kinds of questions people have for Eve.

>> I have a question. Do you think that Obama quote -- this is Lainey Feingold. Sorry. Do you think that Obama quote about this is who America is as real since the election? Are we kidding ourselves about who America is?

EVE HILL: I don't think we are.

>> Can you repeat the question?

EVE HILL: So the question is, do I believe that the quotes that I just read about who we are as a country is true, given the evidence that people have made their voting decisions on very, very different ideas possibly.

I do think it's true. I think the reaction to the first pieces of work to come out of the administration have shown us that apathy is over. And that much of what contributed to recent events was not just hatred of what was going on but apathy about what could be done. Or apathy about not expecting terrible things to happen. And I think apathy is over. And I think people are more coming together across lines more than they have done before and more than they will do in the future.

So I am remarkably optimistic.

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And some of the things -- so the transgender guidance that I worked on has been pulled down. Transgender people are not going to go back from that. People with disabilities are not going to go back and say, oh, well, you gave me this gift of something like equality and now you took it away.

We are here. We're living with our neighbors. Our neighbors are understanding. I think it has grown on the streets in ways that can't be rolled back.

Or can but we won't let them.

[Laughter]

MARC MAURER: Other questions.

Thanks, Eve.

EVE HILL: I was not controversial enough.

[Laughter]

[Applause]

MARC MAURER: I feel grateful to be part of the same team.

We take up at 1:30, and we're going to talk about changing the standard as established by a couple of Supreme Court cases. I want to know what the people on the panel know more about it than I know about it, so if you'll gather in the other side of the room to be ready at 1:30.

[Break]

MARC MAURER: Okay. Has anybody heard of Lainey Feingold?

Lainey is sort of near the back of the room there, and she has written this book about structured negotiation, if I remember right. You may know that she's been in a number of them, and she has them available at a great price. They're also available electronically, but they cost more that way. So if you want a nice print one, she'll have them in the back there, and she would even sign a book for you.

So if you have a wish for a book, please step by Lainey, so that she can find out about that.

Now, David up in the front row here is headed for D.C. tomorrow after we close the law symposium, and he longs to know if anybody else is going to D.C. because he would like to hitch a ride. I'm not going to make too many transportation announcements. Mostly I'm probably going to leave this to the man to try to work out, but David up here is from Canada, you know, and he's on our program, and he's going to help us learn what there is to know internationally, so if you are going there, let him know.

We begin this afternoon with the intriguing idea of developing a strategy to raise the level of judicial scrutiny in the Cleburne and Garrett cases. We have three people to make presentations, and as I was mentioning earlier in the lunch, I'm fascinated to know

46

what these folks know that I haven't contemplated yet. So I am looking forward to this with enormous anticipation.

We have Ruth Colker, distinguished university professor and Heck Faust memorial chair in constitutional law at Moritz College of Law at The Ohio State University.

We have Daniel Goldstein, who has numerous credits to his name. He is in a different position than the other two, which I will get to in a moment.

Michael Waterstone is dean of the Loyola Law School.

Now, we have two professors therefore, and we have one non-professor. Now, I've heard tell he's taught law. I haven't been there when he did it. Well, in one sense. But he has done what I have urged be done -- I have said from time to time that we try to get laws passed. After they're passed, they don't matter unless they're enforced. Consequently, to dream up the law is sometimes the task of the law professors. To enforce the law is sometimes the task to dream up the method for enforcing it, and that's Daniel Goldstein.

So we have both sides of this equation. The dreamers and the enforcers. Sometimes they're the same people. To give us our presentation, here are these three. And who is going to begin?

DANIEL GOLDSTEIN: I am? I've been informed that I am going to begin.

First of all, if you are contemplating the notion that I am up here with not just any two law professors but two great scholars of disability rights, you may be asking the same question I did, you're probably wondering why I'm here. Well, so am I, so am I.

[Laughter]

To hear the full rendition, that's on the uncut album.

And I'm even more discouraged to see that most members of my firm are sitting on the back row near the exit. Trying to figure out what that means.

[Laughter]

But in any event.

Professor Waterstone has written a critique in a law review that nobody reads, fortunately, of disability rights lawyers like me who don't bring equal protection challenges.

Having read that thoughtful, persuasive piece, I remain unrepentant.

As an advocate, I try to move a judge just enough to win. And when I think about moving judges, I think about a bill that Huey Long put through the Louisiana legislature to move a building one inch. That's how it is with a judge, pushing hard to try to get it to move one inch.

That's sort of the way I feel about the equal protection clause in terms of today being able to move a judge, to say, yes, strict scrutiny applies.

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But also one of the questions I have for my fellow panelists is, which is stronger? The equal protection clause as it applies or could be stronger to people with disabilities, or Title II of the ADA?

And I say that for two reasons: One is that the questions of undue burden and fundamental alteration, which are the only barriers to getting equal access under Title II, I think are far easier to deal with than compelling state interest.

If you find -- if you go and look for cases where a public entity has won in court on undue burden and fundamental alteration, you will find the opinion in the [Raisendeen] case and then you'll find the opinion that said she got it wrong.

There aren't many, if any, courts that have held for a public entity on those grounds.

The second reason why I think the Title II is stronger for us than the constitution is that the analysis of equal protection involves why did the state do it. So that take an example from Michael's article where he talks about a Kentucky law that bars imbeciles and idiots from voting, under an equal protection challenge, it would be a question of why does the state want to bar voters who arguably may not comprehend the implications of their votes and the issues that are before them.

And the Title II case, you don't get to that. You just get would it be unduly burdensome or a fundamental alteration to allow these people to vote, and the answer to that obviously is no.

So I like the change in focus that comes with Title II over the ADA.

In other words, for the constitutional argument, I need to have a judge who is enlightened about disability. I think I met one once.

[Laughter]

So I think also this morning, and if this sounds a lot like Sam, he said it better first this morning, but actually I think it was Sylvia who talked about formal equality versus material equality, and I think there are a lot of judges out there whose sense of equal protection is formal equality. So that meets the strict scrutiny argument I think and makes it tougher to win.

So one thing I would say, because the law is mutable and someday the words I'm saying today, maybe by tomorrow afternoon, but someday my words will be totally irrelevant and out of date and obsolete. So someday we may well want strict scrutiny.

The way to get there, I think, in part, is to pursue due process claims. The more we can show violations of the rights of persons with disabilities in their encounters with the police, with the courts, with parental rights, with children's rights, with education, the more we cast those in terms of due process claims, the more we're building a body of evidence that there is historic discrimination by public entities against people with disabilities. And it will I think help familiarize the judges with the notion.

I think the only other thing I will add and then I'll shut up, is there was some talk this morning about how do you change the culture to change the law, which I think is the right order of things. And we're going to talk about that some tomorrow at the DRBA

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meeting, how do we operate in a Trump world. But I think that for now, we need to be looking to alliance building, community building that will help set the stage and we need to be looking to state courts, because we're about to get another round of judges that will make it a lottery how your cases come out.

Finally this, I would say the case in which we should argue for strict scrutiny is the one where we absolutely have to because we cannot think of any other winning theory. What scares me is bringing that argument when there's some other argument we could win on, because if we lose that again, it's a big one.

Who is going next?

MICHAEL WATERSTONE: So thank you, Dan. Thank you, Ruth.

It's wonderful to be back at tenBroek. I always leave this conference inspired and energized by the multilevel energy and commitment that's going on in our community, and I think I would like to frame this panel through the lens of two things that we have heard this morning. The first were in the remembrances of Larry, which to me really drove home the extent to which we need to think of our movement as an intergenerational one. We are all going to be handing off the work to the law students of tomorrow, who will in turn hand it off to students. When you study social movements shall the arc of the moral universe is long, quite long. And I think Larry's work mentoring young lawyers really drove that home. And the scope of the change we'll be talking about today, I do think we need to broaden the time frame.

The second thing is through Eve's presentation at lunch, which I think drove home in the way that only she can that we need to, while not being naive, we need to always think big and be optimistic and joyous in our work, and I thank you, Eve, for that.

I think those two things frame what we're going to talk about today.

I also want to note I am a little intimidated to be on this panel with Dan and Ruth. Ruth is one of the foremost experts anywhere on the planet on constitutional issues. I don't even teach con law, so let's just throw that out there to begin with. And Dan is a real lawyer who litigates real cases for real people. Along with others, Dan is the heart and soul of our community. And I think at this point it's probably time, I was mentioning to Ruth, it's probably time to anoint Dan the mayor of the tenBroek conference. Get that out of the way.

[Applause]

Hearing no objection, we're moving that into the record.

In terms of our dialogue today, we should take off the table the idea that there's some magical theory where we forgot to articulate the brilliant theory that is going to elevate the level of scrutiny for people with disabilities going to overrule Cleburne, Garrett, get the court on board, and everything good happens thereafter.

If we have that conversation, it's short and I don't have any magic answers.

But I think that given that reality, that should not end a constitutional conversation that we want to have and can have. I think the real question is, can we as a community

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engage some features of constitutional law, constitutional trope, constitutional dialogue? That will be long, slow, multigenerational, but how do we set the table on that and what does it look like?

So I kind of break it down into two issues: One, is there an argument that Cleburne and Garrett were wrong? And you know, is it a decent argument, a good legal argument?

Yeah, right? Cleburne was wrong. Marshal was right in his dissent. Justice White was wrong, when you read the case.

There are assumptions there that because people with disabilities have differences, other groups are monolithic and therefore that's okay. It completely downplays the history of stigma and prejudice against people with disabilities. And Justice White said, well, look, there's remedial legislation, so we're okay.

Justice Marshall in his dissent take as part all of those. I firmly believe that that decision is wrong.

I think Garrett reaffirmed the worst version of Cleburne and somehow moved it to all people with disabilities. And the after manage Garrett has been all cases involving people with disabilities that raise constitutional issues are Cleburne, rational basis, people with disabilities lose. So it is a very, very limited constitutional conversation, and I think that's the perspective that Dan is bringing.

And I certainly can't disagree with that.

I have to say, I agree with almost everything Dan said except for a couple thing that's I'll talk about. One is that, not that it matters, the article was certainly not critical of Dan's work or the work of many of you I've worked with. If anything I've stood in admiration and tried to place it in context with other types of lawyers, but I think it raised some interesting things which I'll talk about in a moment.

So the real question is, given the fact that we believe that Cleburne and Garrett were wrong, we believe that and you know, there's a decent argument that they were, do we do anything about it? If so, what?

That is a much harder, more complicated, messy conversation. And I think Dan did a very good job of setting the current state of thinking on that issue. But I just want to read a couple quotes, because I probed many of you on this issue, leading disability cause lawyers and I want to read a couple quotes from people I respect very much. I think it really shows us the state of thinking on this.

One lawyer said, "I would totally use the constitution if it helped us. It is very weak on this. But mostly because it hasn't been the lead for us, because it's weak on disability and even used against us on disability issues."

Again, lawyer in the room who is amazing.

Another lawyer who may or may not be on the panel who is amazing. I'm amazed when federal courts do not interpret the constitution in ways to assist me. Unless I have a case that extremes for it, I won't be looking are constitutional theories because I'm likely to create a precedent that will close out people who come after me.

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And in a quote I love, "I am a craftsman and use whatever tools are appropriate to the task."

People don't think about disability rights on the same level as racial discrimination. If the day comes before me when I think I've got not just a judge before me but the reviewing court that will understand this issue, that is to say disability in the context of constitutional rights, then I'll start doing it. If you don't need the Supreme Court, don't use it. I would regard cases getting to the Supreme Court in the disability area by and large to be the result of unfortunate accidents. I don't see this court as one I'm anxious to get to with a case.

So those are reflections of lawyers in our community, the leading lights, and they are all absolutely accurate and from a strategic perspective make perfect sense.

Nevertheless, I would suggest, and I have suggested -- well, before I get there, there are good reasons for this. First of all, when we think about should we focus our community energy on raising the level of scrutiny that people with disabilities face under equal protection law, part of what we need to realize is that's yesterday's battle. Ruth is far more expert on this than I, but that's kind of not the way the equal protection clause works anymore. Right now it is this mix of due process claims involving dignity, fundamental rights, with some measure of equal protection stuff thrown in and you kind of shake it up and see where it winds up. So the idea of we're good, that's totally yesterday's battle.

Dan raises a completely fair point, which the constitution in a number of cases generally may not get you any relief that statutes don't provide. So you need to ask yourself, is the juice worth the squeeze.

The reality of our community is that as Eve suggested, you are the most tough, tenacious, smart advocates that exist on the planet but there are no -- resources are finite. We can't bring every climate once. We need to make decisions about what works best.

A point that Dan made, when you have a Supreme Court of nine, there is a rule of five. Right? Which means you need to get five justices and at least on the Supreme Court we have at the moment, in our world we're on a roll. We got through cases in a row that didn't suck horribly. Maybe we shouldn't mess that up.

[Laughter]

The other reality of any constitutional litigation that needs to be acknowledged up front as part of the conversation, any constitutional claims for people with disabilities are not going to work for the entire community. The ADA covered community of people with disabilities. When you look at the equal protection clause, most of the due process, it doesn't work that way. The ADA definition of disability is remarkably broad and when we start talking about principles that matter for constitutional litigation, it's going to be segment of the community by segment of the community, which is different than how our community has made progress which is banding together to get legislative reform enacted.

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So those are all the reasons that doing this is complicated and perhaps even dumb.

But I do think we should think broadly about constitutional claims as part of our agenda. Here's why. Cleburne, which was wrong, still has bite. There are state laws that still discriminate against people with disabilities. That's bad. I do not want to live in that world.

The statute that Dan mentioned, idiots can't vote, that's one there. Are other examples in family law, there are other examples in benefits law, state laws, that expressly discriminate against people with disabilities. Dan is 100% right that as a technical matter it is the ADA Title II is a more elegant tool and a better tool to get relief in an individual case.

But when you are doing that, it can sidestep a conversation that constitutional law drives you right into, what is the stigma or discrimination or animus that underlied legislative motives for passing this law. That is not a discussion we want to have everywhere in every court. But I think selectively that is a conversation that we need to think about having.

State constitutional laws. Moving away from federal law. Some of state laws go beyond federal law, either expressed in the state constitution or implied.

Con law, either state or federal, is different. It has a permanence, a gravitas, a role in public consciousness. We have a judge problem. Selected constitutional claims even in state court I believe can engage judges in a dialogue in a different way than legislative claims.

So last point. At the federal level, and Ruth knows this better than I, if you're not playing offense, you are playing defense. We will continue losing some of these issues if the man that is Cleburne equals rational basis equals people with disabilities.

So all I'm suggesting is we think broadly. We are selected. We target state courts if need be and make this part of our overall toolbox.

RUTH COLKER: That leaves me nothing to talk about.

So I want to put on my con law hat for a minute and make some technical points which I know this audience is so sophisticated, it's a treat to talk with people with such high level sophistication, so hopefully this will make some sense to you.

When I think about this question of scrutiny, I say what would it get us? You don't want to make an argument unless there's a benefit at the other end of the tunnel, so to speak.

When we talk about strict scrutiny, we talk about two different reasons. Reason one is that we're bringing a case under section one of the 14th Amendment.

Reason two is Congress has passed a statute pursuant to a section 5 authority. We want to save that statute like Title II of the ADA.

The problem is, this is really an irony that makes me crazy, which is that if the court concludes that a group only gets rational basis scrutiny because under this charity model they think society will take care of these people anyway, Congress doesn't have

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the power to enact this legislation after section 5 of the 14th Amendment because Congress has more authority to enact legislation when the group gets strict scrutiny. Congress can't even use its charity hat to enact legislation because it has less authority under section five. So this just drives me crazy. I don't see how the court can get it both ways, we merely get rational basis scrutiny because the legislators do such a good job of protecting us, but then oh, Congress can protect us because under section 5 they have very limited authority because we have near rational basis scrutiny.

So Dan, if he doesn't retire, is going to care about strict scrutiny. You'll face a judge who says, this almost happened, right, Dan? You have a judge who says, oh, those ADA Title II, doesn't that cover higher education? Can you bring this case? And he's going to find himself saying, yeah, yeah, under Boerne versus Flores. This a group that Congress has a lot of authority, and well educated judge will tell you that you're lying, right, that's not the test.

So I don't see how we can lose both ways. Both rational basis scrutiny and also limited authority under section 5. I think maybe pressing that irony to the courts, I actually care more about the section 5 litigation than section 1 litigation because we have the ADA and the IDEA and Section 504, these great tools so we don't need section 1 much. But we need section 5. I think we need to explain to the courts you can't have it both ways. If you have weak section 1 review, you have to let the legislature do what's needed to give this community equal protection.

So that's sort of my big point.

But there's other points I want to make nonetheless even about the strict scrutiny standard which relates to what do we get from it.

I don't actually like the strict scrutiny standard. Have any of you been paying attention to what's happening in the race discrimination area? When was the last time the Supreme Court wrote a decision in the race discrimination area that you applauded? I teach con law and I hate teaching those cases. I hate saying this is the rule of law. The courts have used strict scrutiny to strike down affirmative action. They've used it to benefit white people. And you know, I'm one of them. I don't need help from the courts, right? Black Lives Matter, right, the court doesn't get that. At all. At all. And that is what strict scrutiny looks like now. Why would we want that?

Seems to me we're going to ask the courts to have a more vigorous level of scrutiny under section 1. We have some serious work to do to say, what does that look like? And we've had some good discussion earlier today about, you know, well, Eve at lunch was like, I don't really like this vision of the charity model. That's not what I want.

So I do think that's also a really important conversation we need to have. What do we want this thing to look like. And believe me, this is not a time I want to borrow from the race based civil rights community to figure out what they have.

And one other point I would make, then, about what I would want this thing to look like is that the IDEA, one of my favorite statutes, is founded on the constitution, the equal protection clause, not the spending clause. However, the courts have interpreted the

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IDEA very incompletely because they have not interpreted it as the statute that would be modeled under the equal protection clause.

So it seems to me that another thing we maybe can do is when we're in court, using statutes like the ADA or IDEA, we can remind the court that the reason the statute exists is this was Congress trying to enforce the equal protection clause and therefore it doesn't make sense to narrowly interpret the statute under a charity model. Instead, it should be a statute providing for true equal opportunity, equal protection under the law. So to the extent we can marry the section 5 with the section 1 jurisprudence, maybe in that way we can sort of educate the court.

The last thing I would say, because Sam mentioned this morning a little bit about the gay rights movement and what we can learn from that, and that's another one of my practice areas. Gay rights is something I'm passionate about also.

I think that one of the things the gay rights case law shows us, the progress that's money made in that area, and Michael was hinting at this a few minutes ago, is that we really need to always remember the due process clause. In the court's jurisprudence is moving that way anyway when the court upheld Title II in the Lane case, in the cases in the lower courts recently, they actually upheld Congress' use of section 5 authority coupled with the due process clause of the 14th Amendment section 1, not the equal protection clause. So actually if we just want to be successful litigants, we want to draw on case law that's working for us. I think we need to do more with the due process clause. In the gay rights cases, they are all Justice Kennedy's current favorite additive theory, a little bit of this, a little bit of that. So I think there are many differences between the gay rights community's arguments and the disability rights, but the court is starting to marry due process with equal protection. I guess that was an intended pun. You know, we should play that game too. That is now a game available. So it's not the equal protection clause when we went to law school. It's very different today. It's a very different 14th Amendment clause today because of this marrying that's happening between other due process clauses and the ADA.

We are hoping to have a dialogue with the audience today because we respect the experts in the audience and we don't have the answers. We're trying to use this as a think bubble. So think bubble.

MARC MAURER: Do you have comments or questions for each other first?

You want to ask the audience. Okay. Just identify yourself.

RABIA BELT: Hi, Rabia Belt, Stanford Law School.

I think one thing that might be useful is to really do applaud the historians, because I think one of the things with both Cleburne and also with Garrett is that the court didn't really take seriously the idea that there is a history of state discrimination against people with disabilities. And I think that with respect to disability, public consciousness is still admired and it's a good idea of subordination, that there is animus between people but there's not really discrimination, that the state is the one that is enacting things against people with disabilities. And the United States constitution has decided that we're not

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going to do very much with respect to subordination, but we are going to do something with respect to discrimination.

But both with respect to I think the Cleburne opinion, the majority opinion, and also Marshall's dissent, the history is absent. And he tried but there isn't much he can point to because we don't have a lot of material in terms of that state discrimination towards people with disabilities. Eugenics has treated us as an outlier. That's where all the literature is. And there's not really anything else.

And when it comes to the other types of race-based discrimination, sexual orientation, sex-based discrimination, we've seen historians have played an important role in following those areas, where we can talk about things such as the historian's brief with respect to gay marriage, which really denaturalized the idea of marriage and talked about the deep state of involvement in marriage over time, which I think was useful for the court to know.

That's something I think in terms of the professors, right, which I am one, that we need to be more attentive to sort of thinking about the long tale of what was going on with the state, that it was -- that things didn't start in the '70s. They're not just an issue of Buck versus Bell, that things were happening much longer before that.

RUTH COLKER: There are like five people standing in line, Marc, and we thought we would let everybody speak.

MARC MAURER: You want the whole batch of questions first and then try your hand at all the answers?

DANIEL GOLDSTEIN: Does anybody have the answers?

RUTH COLKER: I think I just want to hear from the audience.

MARC MAURER: Okay. Who is next?

>> Kathy Wild, disability rights Oregon. I'm having trouble wrapping my head around this conceptually and maybe it's because I only do constitutional litigation when I'm in an eighth or 14th Amendment context in prisons or that kind of thing.

Give me an example of what you would bring instead of bringing it under Title II of the ADA, that you think might be a constitutional claim that would move us forward? I'm having trouble visualizing it.

MARC MAURER: Okay. And we're going to get all these questions down. So who is next?

>> This is Caroline Jackson from the National Association of the Deaf. I wish I had taken more time to formulate my question, but I actually was a little curious about Title III is not pursuant to section 145. It's commerce. Title one is also commerce. So I was wondering how that would affect everything, because those are commerce clause statutes, just one part of the ADA that's a section 14-5 thing and according to the Supreme Court, it's not a section 14-5, so does that just invalidate the entire ADA and what's the implication of the statute?

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MARC MAURER: At least that one I think you can answer after a bit.

What are the others?

>> Sasha Stanberg.

As someone who has litigated some of these section 5 cases, and now is in private practice, my impression is that these are very, very difficult for private practitioners to marshal all this historic evidence in a district court proceeding. Most people here don't have the law libraries or the access to the most materials to litigate these properly.

When I was at the Justice Department, one thing I tried to do in our briefs defending the ADA, attach to the briefs in a public place the historical evidence we were relying on, mostly so people in this room could have access to it.

But I guess what I would say in reaction to that is, I think that's your job. You guys need to sit down and write why the ADA properly implements -- say proper exercise of section 5 and all these things we're seeing because you guys can sit down and do that in a way that we can't in the two weeks when we respond to a motion to dismiss. So I guess I would turn around, and I'm begging you.

[Laughter]

You guys give us those to work with when we're on the defense.

MARC MAURER: Anyway, that's great. Now who is next?

>> Jasmine Harris, UC Davis. I have five different thoughts but I'll narrow it down to two.

The first is, I would just build on what Rabia said, paternalism as animus and using that frame in particular. I'm working on a project right now trying to push that language.

The second is the need for data. One of the things I've heard all day today is, well, the monitoring is not there, we don't know how much information, how many people are in these categories, and I know Ruth has done quite a bit of empirical research and I think that's the type of research we can be doing as scholars to really document some of these things but we need to work with practitioners who have access in ways that we don't.

MARC MAURER: Okay. Any other questions here?

So you've got about 35 minutes, so let's see how you do here.

RUTH COLKER: I'm going to answer some easy questions and let them answer some hard questions.

[Laughter]

So Title I of the ADA was enacted pursuant to Congress' commerce clause authority with respect to the private sector but with respect to state actors, if a private party wants to sue in federal court and receive monetary compensation as a remedy, they did have to justify that part of ADA Title I under section 5 and Garret found that Title I, Congress

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exceeded its authority to section 5, so we have lost the ability for a private party to seek monetary damages in federal court against a state actor. You have to use your state statute for that.

Unless you could sue under Section 504 but that's a different standard of proof.

So that's a loss for us.

It would help if the court would rethink Garret and would come out differently and would say, oh, we were wrong about that. So it's the section 5 case that would help us. It's not that you would bring that case to the constitution directly, but by using ADA Title I you find yourself having to talk about section 5 of the 14th Amendment with state actor.

Title II is exclusively under section 5 of the 14th Amendment.

Title III is only justified in the commerce clause and under case law, you can't use section 5 to reach the private sector. That's old, old case law. Maybe it was wrong many decades ago, but the Supreme Court is not in the mood to rethink that.

Maybe this court would narrow the commerce clause further, which is not impossible, or a future court. We could find ourselves also losing Title III of the ADA. Right now it's not at risk because the commerce clause which maybe does justify it. So we might be back in a couple years and you might ask me to speak on the panel about the commerce clause, God forbid, but we should be aware of that as a possibility. The Affordable Care Act case was one in which the five members of the Supreme Court were willing to narrowly interpret the commerce clause so there is some risk there in the future that we may find Title III somewhat at risk.

Thank you. Take the hard questions. Those were easy.

MICHAEL WATERSTONE: All I could think of is I would understand con law so much better if I would have had Ruth as a professor.

[Applause]

Okay. This is great. I'll just try to get through a couple of comments.

First, let me take a point combine kind of what Jasmine and Rabia said about the need for historical record and need for data.

Yeah! Like if you're going to play this game, that's the price of poker. I think it's important to look to the gay rights community. Not as a doctrinal example that what's good for the goose is good for the gander or they did this and it will magically work for us. That's an oversimplified dangerous conversation.

But nevertheless I think it's important to look at the different movements and learn lessons what went right, what went wrong, what can we think about.

One thing that has gone right with gay rights community advocacy is the reliance on both history and data. I live in Los Angeles. There's the Williams institute at UCLA that is phenomenal at producing the exact cutting edge research that lawmakers need. On

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the historical side too. Fine point we all need to be thinking of in the short, medium, and long term.

The other point of thinking about this, what can we learn from the last 20 years of gay rights advocacy, so I think I'm right on this. Ruth will correct me if I'm wrong. Cleburne was decided the same year as Bowers?

RUTH COLKER: No.

MICHAEL WATERSTONE: Close. We'll look.

MARC MAURER: 1985.

MICHAEL WATERSTONE: Was Cleburne.

Bowers... '86. Come on. Same year.

[Laughter]

You see two very different strategies from that point on. And again, I'm not saying one was better or worse. Our community made phenomenal success but it's important to look and say what else can we be thinking about? The gay rights community took a devastating loss at the Supreme Court, turned their focus to state courts, a smaller range of issues, using the state judiciary to win hearts and minds, which over time, over a long period of time, led to some gains and progress in the federal arena.

I just note that as something that one wants to think about in terms of movement strategies.

Kathy raised the question of what cases. Great question. I just want to suggest two things to think about. One on Dan's, you know, idiots can't vote. By all means, bring the Title II case. Absolutely, if that's going to win the case for your client.

I guess I'm less allergic to including, being it's a pretty good mix on that of due process and able protection, I'm less allergic to including that because I don't see -- doesn't seem to me like we have a whole lot to lose. Cleburne and Garrett are bad and that's all that we get. So that's one point.

The other is cases under state law. So one example, there's a case in New Mexico involving a driver's license issue that was brought under the state constitution which did not itself provide a heightened equal protection status for people with disabilities, but the state Supreme Court interpreted it that way and it led to this long, rich conversation about the nature of equality for people with disabilities that you simply don't see in most ADA federal cases.

So I think we as a community need to be looking for opportunities for those types of cases where we can bring them in also.

Dan?

DANIEL GOLDSTEIN: Well, I don't know whether to call that the Janis Joplin theory of jurisprudence or Kris Kristofferson jurisprudence. I do think you can lose to the judge

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who says I already decided this case for the plaintiff but let me just reach out and say here are the following 15 reasons why your equal protection theory is all wet.

I want to mention that when Garrett went up to the Supreme Court, Jennifer Mathis did a fabulous service to the disability rights community by getting, I don't know, 20 or so of us in a room and parceling out amicus briefs, all of which as I recall or many of which had to do with history. And I worked on one of those, and it was an interesting process because I found myself anything, okay, here are these cases where blind people have been excluded from juries, and I get that that's a history of discrimination, but how many of the justices and their law clerks are thinking, oh, yeah, how could you have a blind person on a jury? Oh, I think I would probably strike the blind person from the jury.

And so we do need the history. But we also need the contemporary history. We need the next Justice Kennedy to be taught by a deaf law professor. We need the next Neil Gorsuch to have encountered people with visible disabilities engaged in productive professional work. Because the history stays now if the attitudes haven't changed.

So we need the history. We need the data. I'm not arguing against that in the slightest.

But we need the smaller cases that are changing life on the ground to change the culture out of which the judges are coming. So that's one point I wanted to make, and it's actually a poorly rewording of what Sam said earlier this morning.

The other thing is, I couldn't agree more with Professor Harris on the question of the resources and Sasha's point about more law review articles.

You know, those of you who have read Dark Money saw how brilliantly the Cope brothers used foundations and universities bought and sold to create think pieces that influence policymakers and provided the basis for legal arguments. And we've got to do the same thing. We have to do -- it's one of the things that is a lesson from this election. We have to do that same thing. It's probably more important in some respects than what we do as litigators.

So those are the two points I wanted to respond to. And I see we have three more people lined up for questions, Dr. Maurer.

MARC MAURER: I want to find out first if any of the panel members have more that they have to get off their chests here before we do that.

RUTH COLKER: I just want to make one, again, sort of technical point about Bowers. I was very, very tangentially involved in the legal strategy surrounding Bowers. At the time, there was a question raised, should we also amend the complaint to also file under equal protection. That was a discussion happening in the gay rights community, and we decided due process, we might as well save the equal protection argument for another day to not lose on both fronts at the same time.

That turned out to be a really important brilliant strategic decision because it left that argument available later, Lawrence versus Texas, equal protection theory, etc.

I do agree that obviously we make any kind of argument, we need to seriously think of the repercussions of losing. Is this the moment to make that argument.

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So I think we should be bringing section 1, we will have them indirectly make those claims when they come to the court and say higher education isn't covered under ADA Title II. That would be a huge loss for us. And we will find ourselves having to defend the constitutional scope of section 1 of the 14th Amendment just to win under section 5. We won't have a choice about that. We know those arguments are being made in all sorts of preposterous ways right now and will be more so in the near future.

MARC MAURER: Okay. If the panel members have peace, at least for the moment, we have three more. Tell me who you are.

>> Hi there. I'm Kristen and I'm with the Maine P and A. I wanted to respond to Kathy Wild and Michael's comment about what kind of cases you're looking for.

I have a case from 2001 that I brought on behalf of three clients of mine with mental illness that said they can't vote if under guardianship in Maine. We won on equal protection, on due process, because they automatically lost their right to vote when they went under guardianship. We won under Title II of the ADA. We didn't ask for damages. It was a fantastic case. Not appealed. So just a federal district court case in district of Maine, but I would urge people in this room who are looking for this kind of case to look at your state constitutions for these voting restrictions, because you have strict scrutiny there. You have compelling state interest and it was not narrowly tailored. Far from it. It just disenfranchised people who have mental illness.

And in that case, I actually had deposed judges in probate. One judge, occasionally stars line up in cases and in this case it did, because we actually had a judge in probate in the city of Bangor say that he would not disenfranchise anyone else under guardianship, only people with mental illness. So it was a recorded case. Doe versus Rowe. Ironically, the defendant in that case was previously a very liberal state legislator who was adamantly against this but he said I took an oath to defend the constitution of Maine and so I have no choice but to fight this, so fight we did. And we actually won on summary judgment cross motions. And it made it in the book. Thank you.

[Applause]

MARC MAURER: Voting cases are --

[Applause]

-- special because the arguments about fundamental rights is so good.

Consequently, I love thinking about voting cases.

Anyway, anybody else on the -- well, no, we have two more first.

>> Hi, this is Sylvia with DREDF.

We are at a time when the census, with the taking of data, is under a lot of attack. And I think it's something to be very much aware of and fighting. I know it seems like such a little thing, but it's so critical to have federal validated data. And if that is lost to some degree, there are six disability-related questions in the ACS, American community survey. So that you can actually identify people with disabilities, the services they're using, how they're excluded. It's hard to make a case without that. If that's under state

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collections, to the extent that in the midst of the busyness of your own data work, you can be aware of data collection and how much it's needed, please do so.

MARC MAURER: And the third questioner.

>> Leslie Francis, University of Utah. This is a con law question from somebody who is not a con law expert at all.

So one of the problems with contemporary 14th Amendment jurisdiction is understanding race or sex categorically, as I understand it. So any time race comes up as a category, then we get strict scrutiny.

A huge -- well, one of the amendments in the ADA AA was the prohibition on reverse discrimination suits. Now, that's sometimes read as a really bad thing because instead of being understood as the ADA is an anti-discrimination statute, well maybe we've got some protection of stuff creeping in here. But what I'm interested in is whether you actually think that one of the advantages of the ADA is potentially that it is a genuine anti-discrimination statute rather than the anti-category.

MARC MAURER: Okay. So the panel members.

RUTH COLKER: Okay. Well, Leslie, thanks for that great question.

So I have spent decades doing academic writing on the difference between a subordination model and what I would call an anti-differential model.

And one of the things I love about the ADA is it is really one of the strongest anti-subordination models we have in the U.S. code because in part because of the provision that Leslie just mentioned, which is that you can't bring reverse discrimination lawsuits.

So I can't imagine, you know, I can't imagine an equal protection under the constitution that would do a better job than we have done successfully under the ADA.

But on the other hand, it may be that the beauty of the way the statute has been written will make it harder for us to justify under section 5 when it comes under attack because the courts don't understand this idea that a statute written to enforce the equal protection clause could actually just try to provide equality rights to the group that's been historically subordinated. That is the model the Supreme Court currently uses.

So the beauty of the statute may be in part why it's hard to defend under section 5, but I don't want to be a downer here like some other people.

[Laughter]

I assume we'll just do that work because we're right about it. That's exactly what a statute should say. That is what our equality of rights should look like. So we just have to explain to courts why that is the correct model.

But I think most courts don't even realize that provision is in the ADA. Maybe we should deep as our big secret. But it's really important because there are no reverse discrimination lawsuits and that's crucial to getting the model that we want, I believe.

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MICHAEL WATERSTONE: So I have two comments and then a question for you.

In terms of responding to some of the comments, one, I wanted to come back to something Professor Harris said, and it deals -- I do think we have work to do on paternalism being as bad as animus, and I think once you do that, my read of some of the progress that's been made doctrinally under the gay rights movement, there is somewhat of a payoff there. Again, it's uncertain in terms of what that means, but when we look at the DOMA cases, they offer rationales about their understandings of what is desirable public policy which runs through their view of the way gays and lesbians interact in the world?

On the basis of disability, it's based on how people with disabilities interact with the world and the labels of paternalism or animus are kind of in the eye of the beholder.

But who knows.

Chris, was it, who brought up the Doe versus Rowe? What I'm suggesting, in addition to all of the amazing work you are doing, there is a payoff to thinking there are other cases like that under state constitutions, and if we get those on the record in reported decisions, in 10-20 years, that will be there and it's going to be helpful to these larger questions of what does equality mean even under this jumble ever equality and due process.

MARC MAURER: So would you bring that in state or federal court? Bring it in federal court, you can bring it before Judge Gorsuch after a while.

MICHAEL WATERSTONE: For now I would prioritize bringing them in state court. You got lucky. Better be good than lucky.

>> Yeah, I was in federal court.

I would also encourage --

MARC MAURER: We are recording. Please use a mic.

>> It's not that important. That's okay.

MICHAEL WATERSTONE: While we're bringing the mic over, I'll tee up my question to Ruth, which is, I think you've articulated it correctly, which is that we will be drawn into this discussion whether we want to or not.

RUTH COLKER: Yes.

MICHAEL WATERSTONE: If there is -- if inertia happens, it will be in a defensive posture under the framework of section 5. That being the case, under the long view, can we do any better, I guess is the question.

RUTH COLKER: Well, I'm going to try to put a positive spin on this because I promised.

The City of Boerne under section 5 is more permissive than the framework for adopting strict scrutiny under section 1. In theory it's supposed to be the case. The Congress has the authority to act prophylactically beyond that which is barred by the 14th Amendment.

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To win under section 5, we don't have to show an identity, that the rights being protected under the ADA Title II for example are exactly identical to that which we can get under section 1 of the 14th Amendment, no more. That's what the case law supposedly says. Justice Scalia didn't see it that way but he is no longer on the court. That we're sure of.

[Laughter]

And maybe Eve knows. I actually don't know where Judge Gorsuch sits on the section 5 jurisprudence. I'm not saying, again, optimistic that he's going to have an enlightened view on section 5, but there is case law if it's properly cited and that's what lawyers are good at doing, right, but the case law right now is terrible because really what the court has done is equated you can't do anymore under section 5 than section 1 but that's not what the case law is supposed to say.

I get the defensive posture, but I'm just saying it's not a necessary predicate. We don't have to have won under section 1 for section 5.

>> I was just going to add since I was given the mic, read Tennessee v Lane because it highlights all the ways that people with disabilities have faced discrimination and Doe v Rowe was quoted in there. You look at all the work done around the country to demonstrate the history of discrimination against people with disabilities.

DANIEL GOLDSTEIN: I just want to say this. Sooner or later we have to fight this battle again, but sooner or later matters. Okay?

To talk about the gay rights movement without talking about the cultural change would be to miswrite history. The Lane reflected I think probably a shared cultural consensus that there was something shameful about having a person have to crawl up the steps to come to court. And the more we put our energies into winning simple Title II, Title I, Title III cases to change the norms is I think very important in whether we win under section 5.

I am optimistic. I feel like just in the last couple of years, there is different companies that have been proactive and want to have more employees with disabilities. All sorts of places I'm feeling like the ice is breaking and breaking up and things are changing.

And the more time we can buy, I'm willing to do the defensive posture if it buys us more time to try to change the culture in which the judges are thinking and acting.

You know, one of the best judicial experiences I ever had was for the judge that professor Harris clerked for, and but the reason was, Judge Bear was just thrilled with the romance of he could make a decision that would make it possible for blind people to have the same access to research and libraries as everybody else. And so his excitement with the romance of that got my motors going, which got his motors going, and you know, we're just having a great time, he and I. But then I started thinking, you know, second circuit isn't shy about reversing Judge Bear. I've gotta stop. And that's the thing to remember. It's not enough to have one good judge. We've got to be educating all of them in small ways.

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MARC MAURER: So I don't notice anybody else, so let me ask you a little question here. We don't get to run all the cases dealing with disability in the nation, although we represent quite a slice of it here. Cases do come that we didn't get to plan. And we may have other questions, but anyway, let me finish.

Let us suppose that there is a statute or a regulation, I know that there is, so we don't have to suppose too hard, that deals with the second amendment to the constitution saying that if you're a blind person, you don't get to own the same kinds of weapons that other people seem to fancy. What happens when that case comes?

MICHAEL WATERSTONE: Dan is not retired yet, is he?

DANIEL GOLDSTEIN: I mean, I'm not quite sure. I would need to give that some thought. But you point to another problem with your intro to that, which is that I think I've spent a significant chunk of my time talking to lawyers who have brought website cases in the ninth circuit suggesting that perhaps could do otherwise and the state of Texas where the petitioners didn't want to talk to the court about that. You know, there is a question that we may be on offense but we may be on offense because somebody who thought they were going to make a quick buck and turned out they didn't ends up with a case in the Supreme Court we don't like.

I actually think the second amendment case could probably be handled pretty much like your entitlement to a car. You may not be able to get a driver's license, but you're entitled to own a car. Same thing for firearms.

MARC MAURER: So David?

>> Okay. Thank you. I'm David from Toronto, Canada.

I'm wondering what you folks have done or thought about or what might be available to you in the way of targeting formal judicial education? We have appointed judges, not elected ones, but we in Canada have a robust system for judicial education. Judge goes to judge school, early near the start of their appointment, and then they have courses they can take throughout their career if they wish to.

And we have been fortunate enough, I've had the privilege of delivering about an hour and a half, which may sound like a drop in the bucket, but an hour and a half to each of the new judges' courses for all of the federally appointed judges in Canada for about 20 years, and it's getting them early that really helps. Getting them often would help more. But as a chance to not just do the formal teaching but I get to stay at the course for a couple of days and have dinner and lunch and get a lot of feedback and hear some of the behind the curtain stuff and I'm just wondering whether there is any opportunity, whether at the state court level or federally or maybe some states where they do more of this and it would be a worthwhile effort to target and catapult to other venues.

>> I'm Al with Brown, Goldstein & Levy. I'm wondering if in all the cases we have to bring to defend blind parents' right to raise their children may have some constitutional claims. I do not think we have brought any of those claims in the cases thus far but I'm wondering perhaps if that might be something we would pursue.

MARC MAURER: Panel members?

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DANIEL GOLDSTEIN: Well, on Al's question, I come back to which is stronger, Title II or the 14th Amendment. The current state of the law is that the state would only have to show a rational basis for discriminating against blind parents. Obviously given the fundamental rights at issue and the changes in the case law since Garrett, it wouldn't be quite necessarily as disastrous.

But with Title II, we have to show equal access to programs and activities to family court, and the question is, why would we necessarily expect a better result from the constitutional argument. The strong desire, which I acknowledge, we all want to feel the shield of the constitution. I think any of us who have ever been a minority in some fashion, that's probably the majority of us, so to speak, have, you know, wanted that shield. But you have to look at what's going to win for you, and I just wanted to say to David's question that I look forward to the emails about what the Ontario alliance for disabilities is doing, and there are about 213 people in this room who may decide they want to be your guests if things go south.

[Laughter]

So you probably want to fix up your guest room.

We were just chatting among ourselves, in terms of educating judges, I think it needs to be important that the disability community do that. And in areas like Al is talking about, family law, we need blind parents, for example, talking to family law judges about how do I raise my kid. It wouldn't do much for me to teach that class. Because it wouldn't have the authenticity. It needs to be convincing. They would just dismiss me as some progressive.

MICHAEL WATERSTONE: I want to add on to Dan's point. We need more lawyers with disabilities. Which means we need more law students with disabilities. Which means we need to --

[Applause]

For all of us in legal education, this is an imperative. You want to know what's really going to change judges or justices? It's when they have a law clerk with a disability. So it's not even -- lawyers with disabilities but lawyers with disabilities getting law clerk positions. This is something collectively that we've made progress on but it needs to be at the top of our agendas.

RUTH COLKER: If I can just add one thing. I am often called to talk to judges at the state court level for our so-called diversity day because under their state rules for judges they have to do some diversity education. Sometimes they ask me to do something about gay rights or gender discrimination, sometimes disability. But I get tired of being segregated to diversity day. Every day should be diversity day. And I don't go in and talk about disability issues as someone with a disability so I think that makes me less good at it honestly, right, because I can't disabuse the stereotypes as many if I'm not impacted.

With respect to students, this is depressing for me. I right now have a student just finishing second year of law school, near the top of his class if one of his exams allowed

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him to read all the print on the question, I think he would have done better on that one exam, but he has like a 96% average.

He only got a job this coming summer at a law firm because I made a personal phone call to one of the partners and said, this is ridiculous, he is brilliant, he is great, and he's not getting an offer.

They have the charity model and extended him an offer this summer and I hope it goes well. But it's frustrating to me that I have one blind student in each of my first year classes which is a lot more than the first 25 years of my career. When I watch their employment opportunities, they face such dire direct discrimination. And that's all it is. Students with the same grades and opportunities. And I don't have a solution there. It's great NFB exists but we can't litigate on behalf of every law student having trouble getting a job.

MARC MAURER: Professor, how do we document it?

RUTH COLKER: It's impossible. Everyone can come out with one explanation at a time, right? And talk to the firms, why aren't you offering? Now we get their crappy answers.

So I mean, it --

MARC MAURER: The survey. I think we should do the crappy answer survey. Find out. I mean, there's got to be a way to document it. The Garrett case that says we don't have any record and there's all that record before the Congress.

Anyway, it is 2:45 but there's one other person. How about it?

>> Hi, I'm Christina from disability rights advocates. One thing I do remember from con law is the right to make decisions about your children (inaudible) and I wondered if we could come full circle to the beginning when you were talking about procedural due process and substantial due process, if that's in the one minute remaining to us in this panel, how do we make that argument when it comes to the rights of parents with disabilities to parent their children?

RUTH COLKER: We can't.

DANIEL GOLDSTEIN: Yes. I mean, again, I give the unenlightened practitioner answer of Sharon does these cases now, but when I was doing them, if there was a family law judge in Alabama who was taking the kids away from the blind grandma who had custody because she was blind, I flew down with Anil Lewis and Chris Cox and some other blind parents to testify, here's how I do it and I'm a real human being. That was interesting because the courthouse was undergoing renovation so we had the hearing in a closed furniture store.

[Laughter]

But the thing was, the judge starts hearing from real people, and all of a sudden, he's prepared to reverse his ruling. And we did that, I don't know, a half dozen times where -- and thank God, I don't know if Anil is here, but his son turned out pretty good, whether he gets any credit for it.

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[Laughter]

But that's really how we won those cases was the visibility of people with disabilities doing the things that the judges think they can't do.

MARC MAURER: Okay. And at 3:00 we are going to have five workshops, and at 4:15 we will be back here and there's coffee now and there will be coffee at 4:00.

So thank you very much. This has been most enlightening.

[Applause]

[Break]

3rd Floor Library

3:00 p.m.

ZAINAB ALKEBSI: Can anyone guess what the airlines' resistance was?

LAINEY FEINGOLD: Cost?

ZAINAB ALKEBSI: Cost. Yes. Cost was a big one. Never mind the fact that the cost would be maybe .03% of their overall budget.

The other one, any guesses?

>> Safety.

ZAINAB ALKEBSI: No. Although safety messages and videos are required to be captioned under the Air Carrier Accessibility Act, but that is the only thing captioned.

What I was looking for what they were saying was technology feasibility. They said that there was not that, technically it was not feasible. They were ignoring the fact that it is already being done out there.

I see a hand.

>> You have to tell them what they said about technical feasibility. They said it's 30,000 feet up in the air. TVs work differently up that high.

ZAINAB ALKEBSI: Exactly. It was ridiculous. I have to tell you when I read that document, the first time, my eyes were rolling back in my head. They were coming up with every possible excuse.

So what I did is I pulled in an expert to refute their claims. I am not a technology expert. I know policy. I do not know technology. So I got an expert to explain to them why they were wrong.

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So the education process continued, and they kept saying no to everything. And we repeatedly told them, stop telling us what you can't do. Tell us what you can do.

But one element of this reg neg was that I was just the advocate. It was just the advocate and the airlines. It was not just the two of us. There were many stakeholders at the table. We had manufacturers, content providers, other staff, and one person came from the FCC. So there was some overlap.

With all of these people there, altogether there were about 30 of us, and we were able to brainstorm together. So it wasn't completely adversarial. Like I said, the educational process continued. We finally started to be able to get through to the airlines, and they started to get it.

Then both sides started to make some concessions. Negotiations will never be 100% of what you want. You have to strategize and think about what are the nuts and bolts that are nearest and dearest to your heart.

TIMOTHY ELDER: Does anyone have any questions for the panelists?

>> I have a question. Lainey, you mentioned that you guys for the ATM case, you guys were able to get them to get a resolution through structured negotiations despite the fact that there was no technology existing for making ATMs accessible and I was wondering how you did that.

LAINEY FEINGOLD: Well, yeah. The ADA has a problem that you may have experienced which is that ATMs are not covered by the ADA. Banks are covered. So we probably spent 6 months to a year with the banks saying they couldn't do anything because the ATM manufacturers didn't make them. And all their obligation was to buy them if they were made.

But what happened here, and at the time, it seemed like a miracle, but now honestly, this process has worked for so long that I think that when you -- I mean, as a profession, we're so conflictual and so used to like Zainab said we're used to people saying no, no, no, no. This process doesn't have a no. Yes, they wrote us letters, yes, we had meetings where they said we couldn't do it, but eventually they met the clients, we had a strong team with each of the three banks, different blind people and the California council of the blind, so maybe 4-5 blind people involved with each one, and we eventually went to their ATM labs and gave feedback, we reviewed scripts, we had someone who spoke Spanish.

Eventually it just broke, and they realized they should do it.

Canada had -- we started in '95 with them. In 1999 Canada got the first ATMs that talked in the world, so there was that. We brought that into the process.

And I know it seems hard to believe, but it actually happened because there was a relationship formed and there were so many a-ha moments when the bankers met blind people. We had Kathy Martinez who eventually went into the Obama Administration, traveling the world, and she couldn't get $20 of her own money out of the bank?

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And the truth is, law forces companies and the people in them to be defensive. That's why we try to stay away from the word "defendant," but when these bankers saw a customer couldn't do it, I know it sounds naive, but I think they really wanted to, like wow, then got it in a visceral way because it was like a show don't tell. And as lawyers we write legal briefs. When I interviewed for the book, I interviewed opposing counsel, I don't use the term but shorthand for this room, and one of them said, yeah, meeting your clients was more than 200 pages of briefing. We did a deal with the credit reporting companies, and they met blind professionals who couldn't get their free credit report online and they were like, wow.

So yeah. That's how we did it.

>> Lainey, talk a little bit about your experience working not with the lawyers but with the tech folks about how they see it as a challenge.

LAINEY FEINGOLD: Yeah. I have two other props I wanted to mention really quick. I have fear monster. I brought these as a way of explaining structured negotiation.

>> I was curious as to when you said that sometimes the response to the opening letter may be very dismissive but give you some sort of an opening, but if you would like to, we'll talk.

But I assume by agreeing to talk, though, it's only under some sort of protection of structured negotiation agreement, right? Because when we tried it a few times, occasionally the response we get back is the response you might get from a regular demand letter. Like, well, your proposed agreement is all nice and we'll talk with you, but we're not going to enter into that and then you don't have any of the protections that you would get.

>> With this process, would it work or has it worked in your experience when you've already gone down the litigation path and tried to switch directions? Or does it have to be at the beginning before things get kind of heated.

KAREN PELTZ STRAUSS: Hi, so one of the things that we think about in the government, at the FCC, is kind of taking, going back a couple of steps and trying to avoid even the need for getting to the stage where you're at where the company has not done the right thing.

So for example, we have a disability advisory committee, and the purpose is to have an ongoing dialogue as the technology is being designed and developed to try to find out what's being developed so they can be developed with accessibility in mind. I mean, that's really kind of at the very front end, and that's the ultimate goal, right, to not let it happen in a bad way so that you have to go after it either with a structured negotiation or litigation.

It's more along the lines of the reg neg that Zainab participated in. Sometimes it works. Unfortunately with airlines, I was involved in one in 1984 on airlines that brought up the same captioning issue, and it took this long to come full circle. Video description wasn't on the table.

ZAINAB ALKEBSI: Yes, it is a very, very long process.

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KAREN PELTZ STRAUSS: That was probably one of the longest and most painful omissions. I mean, it was just -- there are some industries that are more resistant than others, and that was one of them.

But it's just another tool of coordinating interactions as technology is being developed, in whatever fashion might be appropriate, whether it's for a coalition, workshops, through interactive engagements via governmental vehicles or private vehicles. I mean, setting up structures for industry and consumers to talk to one another.

ZAINAB ALKEBSI: I completely agree. I'm on that disability advisory committee that Karen mentioned, and I found it's very beneficial to sit down and have advocates and industry sit down and discuss and agree upon proposed recommendations on different topics. And the case of technology, sometimes we're able to reach an agreement even before the technology has been implemented. Like the real time text. So I found that to be very beneficial, I agree.

TIMOTHY ELDER: They're not synchronizing. It's a great point.

LAINEY FEINGOLD: You have three hands on your left.

>> This goes along with what we were talking and perhaps to add to your question about additional tools. I had the luxury of practicing in California and primarily in the Bay Area and in federal court only. In northern district specifically, to speak to Kelly's question, can you start the litigation process and come back. We have automatic stay forces the parties to have a conversation, go through mediation process, and only when that is certified can you launch your missiles, do your discovery, and all of those things which I find to be extremely useful. I settle 99% of my cases in that way.

So what I've been doing in my nonnorthern district federal cases, I'll do the same thing and implement my even general rule 56 in that courtroom, talk to defense counsel, ask if they would stipulate to a magistrate. It doesn't hurt them. Most defendants, even the corporate ones, jump on that. In their mind probably thinking they'll get free discovery. I'm happy to give that to them if it starts the conversation.

In one case, it was a bingo parlor up in Sacramento and it was great because in that process, which is not general rule 56, I said, you know what I want us to do? I want you to come with me with my expert, bring your expert, to the bingo parlor. I want you to understand what it is that is problematic. And I showed an expert in a wheelchair. So then I could see the looks on their faces, and it was just like the clouds parted, the angels started singing, at least for me. I'm like, they actually get it.

And we got more than I would have been able to get in litigation. In fact, that settlement agreement, I look at it and want to frame it. That's for anyone who practices in federal court.

And courts would be ecstatic to get something off their docket and know the ball is being moved forward.

LAINEY FEINGOLD: I think Blake has the last question.

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>> I just first want to say I think this is the best panel I've ever been to as a policy attorney coming here for years, to hear you talk about all this stuff. It's been awesome.

The thing that comes to mind, on the one hand, this sort of stuff is not new in the policy world. We've been talking about multistakeholders, including reg negs and various other types of groups like this who are a long time.

But one thing we've seen in policy making in multistakeholderism is when there's no leverage, there's no hammer in the toolbox, things can fall apart.

MARTIE LAFFERTY: That is so sad.

>> Facial recognition, a famous blowup in that case because no one could agree what to do.

You guys have been talking about all these different solution, sort of having a hammer in your tool kit and that in many cases will be a Title II or Title III litigation. But I was wondering if there are other ideas that you have had or experienced about different kinds of hammers or different kinds of leverage. Example that comes to mind is having a statute that delegates to an agency some high level authority to implement a series of rules in conjunction with an advisory committee or thing as long those lines.

I'm just wondering if folks have ideas other than the ADA that work as leverage to get folks to the table.

[Break]

MARC MAURER: This is the final session before the gathering this evening, and I know many of you are looking forward to the gathering this evening. I've heard from some of you. I haven't heard from all of you, but a goodly selection. But we're taking a moment, or a few moments, to have an open discussion as it's denominated in the program, a caucus, and to manage this for us we have Robert Dinerstein, who is professor of law associate dean for expediential education and director of the disability rights law clinic at American University Washington College of Law, where he has taught since 1983. That would be 34 years. That's longer than a number of you have been alive.

Dr. Dinerstein wanted know point out he's an elderly gentleman.

He was part of the United States civil rights division in the Justice Department prior to that. He did cases on behalf of those who had been placed in institutions, especially those with intellectual disabilities and juveniles. He has served on the President's committee for mental retardation, now called the President's committee on people with intellectual disabilities. He has been a consultant for the world health organization. He has given advice about changes in law for Ghana and made other suggestions about creating the proper law in southern Africa.

As he has been teaching now for more than three decades, he is the appropriate person to lead an open discussion on the subject of disability rights this afternoon.

Here is Robert Dinerstein.

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[Applause]

ROBERT DINERSTEIN: Thank you, Dr. Maurer. My former students here all thought I was 28 years old. Sorry for outing me there.

This really is meant to be an open session. I must say when Lou Ann first called me to ask if I would chair this session, and even though I'm on the steering committee and had been to all the tenBroek symposia, I said, well, what do you want me to do?

She said, have an open discussion.

It occurred to me as I was driving in this morning, I wonder what exactly she means by this.

[Laughter]

I think it really is meant to be about as open a discussion as possible. I have some thoughts and I'm quite able to call on people if need be, and I know some of them who are dipping down, I see you.

And I thought one thing of course is we have the opportunity to follow up on the discussions we've had earlier today about the legitimacy or value of constitutional litigation in the disability rights field, the comparison between ADA and constitutional litigation, the ongoing possibility of Cleaver and the possibilities of that. Where the disability rights movement is going. Again, we had a fairly significant election and there may be questions about that. We've got folks here from the Justice Department, probably can't say anything about those questions but might be interested in hearing what people think.

Really it's completely open.

Also, we've heard a lot today from some wonderful presenters, Sam Bagenstos, from the beginning, I mean, it's been a terrific all-star panel and great questions from the audience.

And one of the issues has been people's self-description of whether they're downers, optimists, pessimists, which makes me think of one of my favorite sayings from one of my students, one year we asked the class, are you a half empty or half full kind of person.

And we all think we know what that means, right? If you're half full, you're an optimist. If you're half empty, you're a pessimist.

But one of the students said, actually, I'm half empty but I'm an optimist because if the glass is half empty, you still have a whole half a glass you can use to fill up.

So now I realize I can say either one when I answer that question myself and it may mean either.

I wanted to mention one thing, and again, I hope people will come to the various mics and ask questions and, again, have a conversation. This is not at all meant to be a lecture.

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But I did want to mention one thing because we did spend some time today about Cleburne. And that is there's an article that came out. It's still out in SSRN University of Pennsylvania, entitled "Was Cleburne a Mistake?"

Today I think we heard some might say its interpretation was a mistake, but at Brooklyn law school, the author, an excellent article, he went back through the papers of the justices on the court at the time of Cleburne, and the mistake to which he refers is that initially the majority opinion was Justice White was going to end right after the court rejected heightened scrutiny for people with intellectual disabilities. At that point it was going to end and it was going to be a remand to the Court of Appeals for fifth circuit which had not analyzed the ordinance in Cleburne under a rational basis test. What the lower court had done was engage in quasi suspect class an Al cyst. The Supreme Court said explicitly, that's not required; it has to be rationally basis.

But in the memos between Justice White and Powell and others, what happened was a compromise. Justice White actually felt very strongly that the Cleburne case should be decided on an as applied basis and not on grounds of discrimination, which means there may or may not be a legitimate basis for coordinates but we should be looking at it in the specific case. And the price of being able to do that from Justice Powell, whose vote he needed was to engage in some of that analysis in the opinion itself.

So the whole last part of the majority opinion in which we all I think who have taught this case have always said, isn't it a little bit odd that the Supreme Court has adopted a test, rational basis, which usually means not only any basis that the legislative authority has identified as rational, but any basis that we could imagine, that even if they didn't use it.

So it was and is a very differential test. How do you square that test with a very close analysis of the arguments that were made by the city of Cleburne for why you needed to have a special use permit for a group home for people with intellectual disabilities? This is the famous, they're on a flood plain, that's across the street from a junior high school, the people would make fun of the people in the home, there would be too much traffic. All those arguments which the court basically said were not very persuasive, and they're not, except under rational basis test, they probably would have been. Which is why many scholars called this a rational basis with bite type test.

So all that is just fascinating to think that rational basis with bite, which I would say lasted from 1985 to Garrett in 2001 was in a sense a mistake because it wasn't really what the intention was.

Ironically, justice White thought putting in all the detail of the specifics of the ordinance would be helpful to cities like Cleburne that would be able in the future to reject placement in group homes or other activities because this gave them some basis for argument, where I think most scholars interpreting this had the exact opposite conclusion, which is whatever you call it, Cleburne seemed to permit a more searching kind of inquiry than we have.

To me this is interesting historically. We talked earlier about the importance of history in some of the litigation, and also it suggests one possible route, and I don't know this still exists post Garrett, but could, is let's pretend that Cleburne still mean what's we thought

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it meant before Garrett and instead of arguing about what level of test it has, look for more searching inquiry and cite Cleburne. I don't know that we've tried that yet. I can see some downsides to it but something to think about.

Anyway, that's just one thing.

I really want to open it up. Again, I will shamelessly call on people I know, but we're not restricted to what we talked about earlier, but we can start there.

Okay. I see a hand up on the left-hand side and I see Charlie Brown making his way to the mic. Charlie used to be much faster coming to the microphone.

>> At my age I'm hardly ever called fast.

Tomorrow we will have the President of the American Bar Association, weather permitting, be here. I was thinking that when I first helped work on the first of these, and I've been to all but one of them and that was an unavoidable situation, but this would not have happened ten years ago. And we've been talking about the culture a lot today, and it led me to again say what I have often said before but I'll say it again, maybe never again, but I don't know whether it will work.

The primary problem, we talked about all these judges and judge culture. Where do these people come from? Once in a while some of them come from academia, but that's where they maybe have met two disabled law students in their teaching career.

But most of them come from the politics of the profession, so to speak, and I firmly believe that just about anybody who does disability rights, especially if they're disabled folks, should be involved in the bar. Their state bar, their local bar. And I don't mean going to meetings; I mean helping to run the thing.

Like Scott LaBarre who is on the board of governors of the American Bar Association. I'm on the council of one of the bars, ABA's largest divisions. I also have presidential appointments and have had a number of them. That takes work.

But it's work well worth it because you're in the room, thought of as a leader when you need to be there. It's expensive. It's time consuming. But if we don't change the culture of the profession, especially the ABA which tend to have a lot of the leaders of the profession, the big firms, it's big law 101 in there. If we don't change the culture of the profession, it's going to be slow going on changing the culture of the judges.

Please, get involved. Get interested. Use your political skills to get where you need to be. They have a policy on diversity, so they won't -- they actually include people with disabilities if they can find them. Of course that may not be much good in running for office, but it won't hurt you.

So I just at the stage of begging people to get involved, to get involved in their substantive area in one of the divisions or sections, and to also find a way to press disability rights by showing up when they need to show up and having the kind of leadership positions that will be influential.

So please do this. That's what I have to say.

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ROBERT DINERSTEIN: That's great, and I would absolutely second and third and however many times go with that. I mean, one of the issues that we know is true about disability generally is it is of intense interest to people who have some experience, either their own or family experience or professional experience, but for those who don't have that experience, it's like talking about people on Mars. And one of the ways to get people to know that people with, that lawyers with disabilities, are able to be as good if not better than lawyers without them is to be in their midst and for them to see the value that we bring.

I think as other marginalized groups have understood over the years, that puts a lot of pressure, perhaps unfair pressure, on people who are the first in an entity, the first on a council, the first people in a firm, and you have to decide whether that's something you can handle, but I think the dividends of that are wonderful and also as we talked about today I think we're in a movement where some of us are here because of what people ahead of us did and some of us will follow because of things people do here today.

Scott?

SCOTT LaBARRE: To put a little finer point on Charlie's remarks, what we need to do is get more of us on the various benches. The culture of the judiciary won't change until there is a much greater participation of lawyers with disabilities.

And speaking of things ABA, the ABA House of Delegates, which is the supreme ABA policy body, last year passed a resolution calling upon state and federal judiciaries to diversify because the bench is one of the least diverse places in our profession by far.

And it included in that resolution a call to encourage greater numbers of lawyers with disabilities on the bench.

Now, the funny sort of back story on this is when the resolution was first introduced, it did not include disability. It included everything else, but not lawyers with disabilities. And I was at the time serving on a commission, the 360 diversity and inclusion commission, and everybody on that commission was jumping up and down saying, this is a great resolution! We need to endorse it and support it and cosponsor it!

No one. These were diverse leaders. No one even thought about us. Until I wrote a very impassioned email to the rest of the commission saying, "I will fight, yell, scream, do whatever I need to do on the floor of the House of Delegates, issue press releases, unless we change this." And then everybody said oh, that's a great idea, we were wrong.

So then we went back to the sponsors of that resolution and said, you've got to change it. And fortunately they did.

Now, this resolution came from the judicial division of the ABA, among others, and that's where we're going to start.

I want to work closely with whomever and the judicial division to make sure we really, instead of just saying it in words, we take some actions to truly increase diversity on our bench, including lawyers with disabilities. So that's what I think we really need to do. Otherwise, we won't change the culture where the culture needs to change.

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ROBERT DINERSTEIN: Absolutely.

I know we have somebody on the left side who has had his hand up. Then I'll go to the mic in the middle.

>> It's David, still invading from Canada.

ROBERT DINERSTEIN: I thought by now you had gone to the U.K. or something.

>> No, we're okay still. We're okay. U.K. is getting a little weird.

Just two thoughts. The first is, regarding the discussion earlier today about paradigm shifts, thinking how can we recast the message to make it work better, what we're doing in the disability rights movement in Canada is trying not to talk about disability, people with disabilities, versus people without disabilities, but instead we just define ourselves as everyone. The minority of everyone. Because everyone has a disability, has someone near to them who has a disability, or gets one as they get older.

So we define the debate as not what you will do for us but what can we show you that you need to do so that you won't face what we've had to face. Who out there wants to create barriers against absolutely everybody?

And it actually has helped a lot.

Another way of putting it, which is a colleague of mine in the built environment design world came up with, which is really resonating with some of the people who design the built environment and seriously don't get it, is to say to a group of them, "When you design a building, are you designing it for people to use during only part of their life or for their entire life?" So meaning when they're in a stroller, when they need to be wheeled in, or during the part of their life in their later years when they may not be able to walk up the stairs or see their way around, or are just designing the building for that supposed middle of life when they can do it on their feet, if they can at all.

So when they think about, oh, my God, if I design the building the way I was thinking of, I'm actually telling people they can only use this building during part of the their life. Suddenly it becomes another way of jarring them out of the way they used to think.

That's suggestion one about figuring out redefining, not giving up substantive arguments but framing it so we suddenly sweep everybody to our side of the line, and on the other side of the line is only those standing in opposition to everybody, and they look pretty alone and stupid in that position.

The other point, and I don't commend Supreme Court Canada case law on equality generally because currently it's in a state of relative chaos. In fact, when I do training for judges I encourage them to read it, decide what they should really do, and then read it again and figure out how to say it but they'll be guided by it.

But we did have one important case, probably leading case in Canada, about 20 years ago. Facts don't matter, but it concluded, and if this term of phrase helps you, steal it. It concluded that governments to comply with equality have a duty to take into account the needs of people with disabilities in both the design and the operation of laws, both the design and the operation of government programs. So it gets people out of just looking

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at the content of the legislation itself and just looking at legislation but it also covers programs as well but it also forces them to look not only at how it's designed but how it's implemented, which is after all where we live.

But in any event, if you need somewhere to quote, I can give you the citation.

ROBERT DINERSTEIN: Great. Thank you.

As to your first point, we sometimes is a disability is a club you may be asked to join at any moment. It goes to that point.

Yes, sir.

>> I'm Michael. I'm actually on the board of the national association of attorneys with disabilities and we've been working, as has (inaudible) I don't know if she's in the room.

But we've been trying for years a number of us to get a bar association of attorneys with disabilities off the ground and this has always been an issue. There's a black bar, women's bar, LGBT and they're hugely successful. There have been no national bar association for attorneys with disabilities and my pitch is always, in an ideal world, which we clearly don't live in, your race, gender, sexual orientation will make no difference in how you practice law. There's no difference in how a man or woman should practice law in a perfect world or black person, white person, Latino person, but a disabled lawyer will need accommodations, which is why it's even more important to have a bar association.

We need everybody's time and hope it get this going, because ultimately that's why we're in the position we're in, because we haven't had a bar. And that's why a lot of these issues haven't been addressed nationally because these other affinity groups have their bar associations and this has never taken off for attorneys with disabilities.

ROBERT DINERSTEIN: Thank you.

>> Hi. I guess the question I have is about --

>> Give us your name.

>> Ellen. I was listening about the talk about the judges and I actually know of two judges in New York who both have disabilities but neither of them have ever been involved as far as I know with the disability rights movement and one is a criminal court judge in New York and I was wondering whether, you know, figuring out how to identify who is on the bench. Because I think the people who are likely to be appointed judges are not necessarily certainly in the federal bench for the next 8 years -- 4 years! 4 years! 4 years. That's awful. Let me not say that. For the next 4 years they're not going to be the people in this room. They're going to be other people. But you know, I had a friend who was appointed, you probably know Steve Robinson, appointed to the bench during the Bush Administration but he was a career prosecutor. That's the kind of people who can be a great liberal judge who gets appointed by republican Presidents.

But I do think that figuring out how to identify who are the people with disabilities who are not necessarily in this room but might be interested in judicial careers or have

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judicial careers, because I don't think my friend Judge Steven, is anybody known to the disability rights movement.

ROBERT DINERSTEIN: Yeah, I mean, it's interesting because I think those who I think it was last year's tenBroek symposium, Judge Thompson from middle district of Alabama spoke, wonderful judge in Alabama, who basically said, oh, I guess I also have a disability too. This had not been an important part of his identity. We have a judge with diabetes that was talked about during her confirmation but not in the way of disability consciousness.

So as we know in any kind of situation, for people to see others like themselves in situations, that makes a big difference in terms of their sense of career trajectory.

>> I missed the first couple of minutes of the panel and I am risking embarrassment asking a question.

ROBERT DINERSTEIN: I answered every single question.

>> I will risk asking it again. You, in addition to being a leader in the disability community, are a leader in the legal academy. And it strikes me that those of us in legal academy have some responsibility at the other end of the time continuum for talking about judges to better support law students with disabilities. And I've been thinking during this discussion about the various things we might do in terms of recruitment, admissions, curriculum development, academic support, career support, all those sorts of things.

And I was wondering if you might share some of the ideas you've had or have encountered about how law faculty can play a better role than perhaps we have in ensuring that folks with disabilities are able to get out and practice law.

ROBERT DINERSTEIN: Yeah, we answered that all before.

[Laughter]

No, we didn't go anywhere near that.

So I think in the first instance, so I will just say that on any faculty, my sense is most people don't get disability. Right? It's just not something, again, whatever their politics might be, again, for reasons that others have said, where they don't necessarily even think of disability as something to pay attention to.

What they care about is, you know, wanting to run their classroom in a particular way. And when something is done out of the ordinary, it throws them for a loop. So those of you from the profession who haven't been in law school for a while may not realize but the issue that most energizes faculty is do you permit laptops in your classroom. Would you think this is at the level of do you build a wall.

[Laughter]

And many people don't like to have students have computers in the classroom, laptops, because they feel that while they are talking about the various important tests under the Cleburne case, the students are shopping online and buying new shoes.

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So they ban laptops. Okay, that's not what I would do, but many folks do.

What about the student who may need the laptop and may have gone to the disability services office in the university who gets the laptop as an accommodation because of some learning disability or other kind of disability.

Well, okay, you've got a problem. If everybody is banned with laptops and one person is using a laptop, it's going to be pretty clear that probably -- either that somehow, this is like really the teacher's pet, and we don't know what that's about. Or okay, this must be a student with a disability, and if it's a nonvisible disability, that's of course doing that. So that doesn't seem right.

The faculty member may have good reasons for not wanting the laptops there.

One of my colleagues I thought had a pretty good solution to this, which was, it was a large class, all right, we've got 85 students in the class. There's no laptops. But I will permit five of you drawn by lottery, supposedly, to have laptops who you can be the note takers and others will have access to the notes.

Knowing that one of those five in this case had a disability. So in this case, maybe some students are speculating, okay, those five, wonder what's going on with them but it's a little bit less obvious in that kind of way.

Increasingly we have colleagues who like to give pop quizzes. Again, I'm not sure exactly why. So what do you do with a student who needs time and a half or double time on a quiz? If the student steps out of the classroom during the time of the quiz, it's calling attention to that person.

So talking to faculty about that.

And I find that you have to have a lot of patience, but you can also play the, I know ADA and you don't card, which I shamelessly will play with my colleagues. Look, this is not just a choice, it's not academic freedom, it's really something you have to do.

I also think it's critical to talk to students, to be active advocates for what they need, and as we've been talking about all day, not to see this as please do me a favor and let me do X or please accommodate, but no, I have a right to be in this. You admitted me to this law school. You're saying that I have the ability to do the work here. But I may need some adjustments and accommodations, whatever you want to call it, in order do that.

So mostly people get it. I also find there's a wide range of students' comfort with disclosing disability. I have students who disclose to me but not others in the class. I have students working in the clinic with a partner and will tell me but not their partner. Other students on day one say I have this disability. And all of those are fine and it's a personal choice, but it does require you as a teacher I think to have some judgment and flexibility about how to deal with it.

It's a great question.

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>> My first comment goes on the discussion we have been having, and that is the last couple of years I've been representing medical students who need testing accommodations. A very frustrating experience.

And one of them was being denied accommodations partly because he had committed the sin in the eyes of the national board of medical examiners of having passed several prior tests on which he didn't ask for or receive accommodations. Why didn't he ask for accommodations? Because he was ashamed of having a disability, and he was ashamed of the very idea of asking for accommodations.

He finally in his third year of medical school got to the point where he could no longer overcome his disability by studying ten times as much because he was a third year medical student and he didn't have any time, and so he finally got asked for accommodations, got them from his medical school, was denied from the exam.

And I think you've alluded to that there are people who don't want people with nonvisible, so called nonvisible disabilities, who do not want to call attention to that fact.

So if those of them who are lawyers involve themselves in the bar association, which they should, they may not at all call attention to the fact that they have a disability. They may do the really hard thing that they have become expert at over the years which is not having anybody appreciate the fact that they have a disability and just seeing them as people, which is what we all want to happen anyhow.

Just sort of related to that, I've spoken a couple of times to groups about, among other things, these NBME cases and I did a couple of days ago, and one of the people in the group that I was speaking to said, "Well, gee, I don't know if I want to have a doctor who can't read tests."

So among a pretty sophisticated and on the whole nonprejudiced group, this lady was actually kind of prejudiced and it was especially ironic because as far as I know, one of the things that, you know, you can if you're a testing agency say we can't give extended time because the very thing we're testing is the ability to answer quickly, the NBME has never thrown that argument out about its test.

So apparently they concede that is not an issue with this test and yet this lady the other day -- and others have spoken over time.

So I think the whole, one of the things that gets in the way of this idea is that people with disabilities, some people with disabilities, want to be just people, don't want to identify. Don't want their primary identification to be as a person with disabilities.

And I can make all kinds of arguments to them as to why they ought to because of the importance of this issue, but that's still a fact that runs throughout this idea.

MARC MAURER: Can you let us know who are you?

>> Larry Berger.

ROBERT DINERSTEIN: My response to that or what I would say to students, I think it's almost like client counseling, what are the benefits and what are the risks to either.

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If you know for example that you are going to need extra time to do written work and you go to a law firm and say I don't want to tell them I have a disability, if on day one they give you an assignment due in 24 hours and you think, I need more, it's not very strategic to not talk about accommodation.

On the other hand, if you don't think you need it or aren't sure and don't want to disclose it for the reasons you suggest, that might be a different choice. But I think also if I were talking to a student who, let's say might be able to get by without accommodations in law school or not, I would also talk to them about, you know, if you go through accommodations and get approved and use them in law school, that may help you get them on the bar exam, where you might need them. Because exactly what you're saying, you didn't need them before, why now.

I think my sense is you need to view this almost in a kind of strategic litigation kind of way, how do I set this up so they basically can't or shouldn't deny me on this.

>> The particular guy I spoke of gets that now. The NBME has radicalized him to some extent along with others in the same situation, but he got there the hard way.

ROBERT DINERSTEIN: As we know with things like bar exams or medical exams, these so-called testing concerns are over and under inclusive. So there are people who might be quite risky to the people we are serving but we don't get at them and they overassume that people who let's say need accommodations might be creating risk factors.

Yes, Ruth.

>> I just want to flip the way we think about that question, because it's really frustrating to me. I don't think it's appropriate that law professors, speaking for that group, get to just make up rules that have all this adverse impact against students with disabilities in the classroom and not be accountable for these rules. Two of my big pet peeves that I will be writing about, I'll take the second one first which is coming out, which is the laptops.

I did an empirical study in my classroom. And what I do in my big con law class which I know you all will join -- okay, you heard the class already.

But what I've done is I say to students, if you use a laptop, you may not go on the internet, you may not tweet or do all these things on the laptop. I am banning laptops and if you would like to use a laptop, send me an email in which you say I promise to only use the laptop for class-related purposes and I don't want to know why you want to use it. Although some students will tell me they're disabled but I don't ask for that or want to know. I say I will approve every request. About half the students make the request and half don't.

I have a big project and guess what, the laptop users did exactly as well as the nonlaptop users. These adults were perfectly capable of making decisions for themselves about whether to use the laptops. For me to arbitrarily ban them because I didn't think I could teach effectively without them being distracted by the internet is the wrong response. The right response is to make them promise to me -- I tell them, it's

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not just that you're distracting yourself. You're distracting the person beside you, who is also looking at the shoes you're buying and it's not fair to them. So I make this big respect point. And I talk to my students all the time, are people browsing the internet in my classroom? They say, no, they're not. They're browsing in all their other classes but not yours.

So that's fine. So the point is, there's something I can do better than this totally draconian policy banning them. Also I believe disabilities is a spectrum and it's ridiculous that somebody has to register for services when they are adults and know what works for them. It's ridiculous to get this label of being disabled if that's just their learning style.

The other thing about timed exams. I don't think we should be allowed to give timed exams in law school. I have practiced law. It's not usually a four hour closed book thing where you have to say everything you've memorized in a really garbaged way.

[Laughter]

So I only give (inaudible) and we worked it out and my students don't cheat and I write tests and they're probably cheating on the exams anyway.

I don't understand. 99% of law professors give timed in class exams and then students have to come out and disclose and why do we have to justify our test taking regime and justify that we give this race to the finish, this 4 hour timed exam in Title III of the ADA doesn't cover in class exams unfortunately, only entrance exams and that's a shame. We need to amend it to cover all exams so that professors have to start justifying their use of these time pressured testing instruments.

So if any of you are law professors, I hope you email me afterwards saying you will never again offer a timed exam and you will stop banning laptops, and I can send you what I do if you want more for it. That's my proselytizing for the day. Thank you.

ROBERT DINERSTEIN: Just one devil's advocacy point though, because I know our school is looking at this.

Since the bar exam famously is timed, closed book exams, and since we don't get to control how that's going to go, I think that that potentially creates a problem that students don't get practice doing timed exams.

Again, everything you said about timed exams in law school should be said about the bar. You don't memorize things and go into court saying, I think I remember what the rule is. I'm not going to look it up because who knows, why would I do that.

Of course we don't. But that's the hoop we have to jump through so I don't know if you've considered that. It's like chicken and egg, what do we do first.

>> My job is to teach my students to the best of my ability. That's my job. And I can do that best, and it's my job to measure what they've learned as best as I can. For me to give an invalid testing instrument because someone else does, that doesn't wash with me. That seems to me to be a really poor argument.

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>> Can I just quickly tag on to that? I think a lot of law professors don't choose to give a timed exam. It's from the registrar's office and they don't push it. So the registrar is the choke point for a lot of accessibility functionality at a university law school in particular, and having a good relationship with the registrar and understanding that the long exams are okay and then you can get around the cheating stuff and all of that will help your colleagues be able to give better exams.

MARC MAURER: I have a question. If you don't have any others.

ROBERT DINERSTEIN: We have one in the audience. Let's go there first. Oh, two.

>> So I was wondering -- I'm Rabia Belt, Stanford Law School.

So one thing -- and I don't ban laptops or anything like that for disability reasons.

So I was wondering about the relationship with trauma and disability. For a couple reasons. One, it was interesting even this morning when we were talking about Larry, this big elephant in the room in terms of something that was not talked about with him. But also that it seems as if there is -- when it comes to the academy, trauma studies, disability studies don't get along very much. And I was wondering how that works in terms of our advocacy work and also our litigation under the ADA. Often our resources get siloed through organizations that are organized by diseases or disorders, and not necessarily around trauma or violence. And I don't see that we talk as much about the people with disabilities that are produced from trauma.

It seems like we can recalibrate a lot of the discussions that happen in the media, for instance, that for instance the people of Flint are a traumatized population because of what is going on and there are certainly people who are experiencing PTSD as a result, people who have experienced the prison system are a traumatized population, people who experience food insecurity, things like that.

So it seems like we can really have a different population if we think of trauma more broadly.

ROBERT DINERSTEIN: Leslie and Michael.

>> Yeah, I wanted to add -- I'm Leslie Francis at the University of Utah, and I wanted to add a complexity to the nontimed exam, which was the first time I gave it, for disability reasons, I encountered students with families. So it was just an additional to try to figure out how to negotiate the complexities of, among other things, intersectionality.

>> For the record, it's all the dean's fault, right? Michael Waterstone.

ROBERT DINERSTEIN: I think we can all agree on that.

>> It was unsaid until now.

I wanted to follow up on Rabia's point. There's a really interesting case that public council is bringing in Los Angeles that I haven't been following as closely as I should but it is something we should all keep our eye on.

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They are arguing that the trauma that children in low income communities and failing schools are facing based on their circumstances is in and of itself or becomes an ADA covered disability and they're requesting certain things from the school based on that. So others may have followed this lawsuit more closely and be able to speak to -- last I looked, it was still working its way through the courts, but that type of thing is what you had in mind and we should be keeping our eyes on.

ROBERT DINERSTEIN: And of course we know that some trauma can cause disability, traumatic situations can exacerbate preexisting disabilities. It works in multiple kind of ways.

Dr. Maurer?

MARC MAURER: So we talked this morning or this afternoon I guess about the constitution and whether or not we should pursue constitutional claims or leave it with the statutory claims that we've got.

And one of the things that I thought about writing about for this is whether or not the constitution has claims in it that we have left without examination. My memory is that the right to privacy comes out of the ninth amendment. I admit that my memory is less clear than it might be, but that's where I remember it.

And the ninth and tenth amendment do talk about individuals having rights, and I don't know whether there's any point in thinking about that, but there may be a point in trying to get privacy to be an element of disability rights in a way that it clearly is not today.

So many times you are required to go be a part of some disability service, otherwise the main service that everybody else would have available to them is not available to you, and this may burden your right of privacy as well as others. I didn't know whether there were any people who had thought enough about that to have a coherent reaction.

ROBERT DINERSTEIN: So far I don't see any hands, but you never know.

>> You're right.

ROBERT DINERSTEIN: When I worked for Justice, they would give you a privacy act notice and say, you do not have to disclose your social security number to the government. Point one. If you wish to be paid, point two, you need to disclose your social security number.

I think that's what people with disabilities face. If you want a service that is not otherwise something you would get, you have to disclose those things. And I think again that tradeoff, which is either implicit or explicit arguably puts people in situations that are not only uncomfortable but unnecessary.

Leslie has her hand raised.

>> What I think is even equally problematic, there are a lot of ways of figuring out things now about you that have to do with information you had to reveal that didn't have anything to do with directly revealing a disability for purposes of seeking accommodation. And that's with what Congress has done in the past week and the wellness program stuff a couple weeks ago, maybe just a week ago, but it's now entirely

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possible to buy information, at least there's no -- or will be -- no federal protection against buying the kind of triangulated implementation that would let somebody know that you -- it wouldn't be able to figure out what you'd done but that you'd gone to a particular physician's office and that you had searched a particular website. Even if both the physician and the website have privacy protections about what you did when you were there, they can triangulate from your cell phone.

ROBERT DINERSTEIN: It's interesting when we think about privacy. The other side of this is that in some circumstances of privacy, for example, closed hearings and some other proceedings that people with disabilities have, the very privacy of it prevents society from basically seeing what's going on and in some cases failing to see some egregious situations that occur.

To me it's always been a bit problematic, understanding all the reasons why we want to keep information about ourselves to ourselves, which is at some level it reflects what I think is a true judgment about where we are in society, is that disability is a disfavored identity. It is not one we think the rest of society thinks of as a good thing to be or to have.

So I think some of the things that people have said so far about organizing through bar associations, getting involved in leadership positions, also is about really celebrating the identities of disability because there are so many differences among different disabilities, so that it no longer becomes a thing that oh, my God I hope they don't find out, but rather, you should know that I have got this quality and characteristic which actually makes me better at some of the things that you may be asking me to do.

Okay. What else do folks want to talk about?

Rabia. I could also do the Jeopardy theme.

>> Another thing in terms of the legal academic, maybe Dean Waterstone can chime in on this, is having to do with the bar, especially with people with psychiatric disabilities.

I had a student who was bipolar and she didn't take her meds because she was worried about having to disclose for the bar that she was seeing a psychiatrist. And that was something where the dean of students was willing to have her back on that, but it wasn't as if Stanford, for instance, was pushing its weight on the California bar or any other bar to really get rid of it. So I wonder if that's one thing that we could also do in terms of pushing.

ROBERT DINERSTEIN: Yeah, and frankly when the ADA was passed, there have been waves of effort of what could be asked, time limitations, get away from people who sought treatment but affects actual behavior.

But the California form is interesting. I had to fill it out, as you do when a student applies for the bar, the California instructions describe what they mean by I think mental disability, but they don't actually ask the question anymore. At least not on the professor recommendation. So I was quite happy that I didn't have to answer that. Would have been fine in the case I was doing, but that's interesting. I assume at some

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point they should just take it offer the instruction sheet because it doesn't relate anymore.

>> The ABA is doing this.

ROBERT DINERSTEIN: Right. So the ABA has a resolution on this. Exactly.

Okay. Question over here. I see some repeat players here. Lovely to hear from them but also encourage some of you desperately want to speak because just can't have more thought about the reception.

>> Just quickly to chime in on the privacy point. I wanted to emphasize this is a prominent info privacy in particular. So where technology is developed to provide an accommodation and maintains some information about personal preferences, it often leaks information about folks' disabilities. Just for example, screen readers used on a web browser become part of a unique fingerprint that an advertising network might be able to use to track you. The fact that you have closed caption settings turned on a particular size probably says something very specific about your vision. The fact that you take a long time to scroll through a particular form might reveal something about a cognitive or intellectual disability.

So that underscores something we are trying to press and thinking about tech policy, the intersection of privacy and accessibility as goals and accessibility -- or one or the other often comes first and at the expense of the other.

ROBERT DINERSTEIN: As you were saying this, I thought what a great thing it would be if we actually had a day where everybody we know is just going to go some of the things that would otherwise provide the fingerprint. Just try to figure out now who has a disability and who doesn't. Maybe that will be tenBroek 25.

David.

>> So I'm a repeater. Sorry.

Because we have a bunch of folks here who teach law and we've been talking about accommodating and meeting the needs of students with disabilities. Point of info for people and a question.

The point of info, I wrote an article for a conference on all the law deans in Canada about 25 years ago on strategies for accommodating students with disabilities at law schools. If any of you are interested in it, I can email you a copy. Just approach me and I'll get your email address and send it to you.

The other thing is, the law school where I teach is really commendable on trying to do a lot of this. One area is experiential learning. They approached me to do a video for the heads of the experiential learning programs to train them on how to do effective accommodations for students with disabilities. Like what can the law it school do to make sure this is a success.

And I did what I could. I was wondering if anybody at any law school has any experience with any training materials or policies or strategies for ensuring that law

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students with disabilities are effectively accommodated in experiential learning programs.

ROBERT DINERSTEIN: That's a great question. I don't know Ruth or others know. I'm not aware of such materials. There is a national law students with disabilities organization. They might well be aware or know of that.

I think my sense is these things tend to happen in more of an ad hoc kind of way and your question suggests we could be more intentional about that.

And again, if we look at the wide swath of, again, over the 30 years I've been teaching, as we've been reminded of, there are many more people with disabilities in law school today than when I went to law school, both identifiable and not. As a way of also changing maybe more slowly than we would like of attitudes of people. Just as we know that IDEA and its predecessors change the way people think about young people with disabilities in K-12 because they've gone to school with them as opposed to knowing they went to school on the short bus and you never saw them.

Since we talked earlier about the gay rights movement and sexual orientation, a lot of what I think has happened there is not only familiarity of lots of people in society with people of a different sexual orientation, but the fact that young people just kind of say, what's the problem. And I think that very much has been part of the change there. I think it's also happening with transgender people. Some folks are stuck in their ways and may not change their attitudes, but a lot of younger folks are more accepting of folks different than themselves.

Yes. A new speaker.

>> I think it's interesting -- oh, my name is (inaudible) from (inaudible) I just left private practice and I'm the advocacy attorney for the state of Nevada disability division, so I guess I'm one of the bad guys. I don't know.

ROBERT DINERSTEIN: No one here is a bad guy. There are just good and less good guys.

>> I think all the overlap is so interesting for me. In private practice I did a lot of name and gender changes on a pro bono basis and I had someone ask me, why are you helping me.

And I had never been asked that. Just kind of an odd question. I think they wanted to tease out whether I had some connection maybe. I mean, not in a rude way.

And I sat there and just said, I don't think it's fair you're not getting help because a lot of attorneys out threw have some judgment about what you're trying to do and I don't have that. We're talking forms and procedure. If can I do that so that someone else doesn't have to or they don't feel comfortable doing it, I feel fine with it.

But I did want to speak to the law school discussion. I've taught legal writing as an adjunct. I came in with all these ideas, I'm going to teach you how to be lawyers! And the administration said, no, we're not preparing them to do that. We're preparing them

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for the bar. So I'm having them write briefs and contracts, and that's good, but you need to grade harder.

I did want to address that law itself is so punishing, emotionally, that I think we have to address that as well as far as people could come out of law school, are they going to become judges? Are they going to continue because of the pressures and negativity, you know, actual practice can be pretty scorched earth. I don't know if others experienced that but I did with ten years of my practice and it's very difficult to keep pushing so you can get the experience that you need to then be the advocate.

And also, for example, in Nevada we have elected judges so you have to go through a lot of public scrutiny and criticism, which goes to the privacy questions and how open people want to be.

And then also I've done elder exploitation but I'm the mom of a daughter with food allergies, and I told the judge, I have to go to this conference and talk about allergies. It was the food allergy conference. And she said, why don't they just stay home? Why do they want to go to restaurants?

That just highlights all across the spectrum. And what do you say if you're in that person's court? You can't use that moment as a teaching moment, because I need to go tomorrow and appear in front of this judge on a case. So I guess it's all over the place but I just wanted to say I'm so glad I came and then all the overlap is really fascinating between gender identity, housing, elder rights, because I think the point that we are all going to travel through this realm somehow, whether someone gets cataracts and now needs assistance. Anyway, I thought it was interesting.

ROBERT DINERSTEIN: It is. One of the toughest things any lawyer faces is what to do when a judge or someone in a position of power says something that is hateful like that and you are not there for yourself necessarily, you're there for your client and you have to think about that.

But I also think it's really important to share those stories you with colleagues at a firm or legal services office so that the burden of calling attention to that isn't only on you if you happen to be the person affected because those of us not affected can play an important role in saying, no, judge, this thing came up and it was a problem.

Again, I always think how would we respond if the judge had said something that was racist or sexist or homophobic? I suspect that we might -- our initial reaction would be more outrage. And that's a problem. We may have internalized some of the, I still don't feel quite okay about this. And I think that's something that is not law, that's attitude and how we think about ourselves and people who are allies of ours.

We're at -- oh, okay. Rabia is just on a role here.

>> I don't know. I just have -- so other identity groups seem to come up a lot, and it seems like it's often in the position of like things are better over there.

I haven't seen a whole lot of like people in the legal profession really going to bat for racism quite frankly. And with the discussion before of the person talking about the other types of bar associations, and if race and gender have nothing to do with how you

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practice law. It's just, it seems as if there's an intersectional conversation that's not happening very much, and we know that people that have these identities in terms of being trans or being queer or being of color, right, and being disabled really puts you at sort of the bottom. It is not helping you out.

And it just -- I don't know. It's more of an alienating dynamic as opposed to, you know, really talking about the things happening over there, all of these movements are doing better and we need to get with the program. Instead of thinking about how there are actually people here who are part of all of these different movements together but also that we should have more of a blend as opposed to a, I don't know.

ROBERT DINERSTEIN: I think that's a fair point and of course one of the frustrations that I think a lot of disability rights advocates have is that other organizations, let's say, don't think of people with disabilities as within their group. And maybe your point is that maybe people with disabilities aren't thinking about reaching out to other groups as well.

Of course we also know when we say having a disability, also can overlap with many other characteristics. So I think we have to absolutely keep that in mind. And certainly everything we know is that the more protected categories are you in, the more likely you are to be facing a double, triple whammy for sure.

MARC MAURER: So, Bob, whenever you're ready for me, I have one more thing.

ROBERT DINERSTEIN: We have a last comment that generated some new folks so I will tell you. So way in the back. Go ahead.

>> Hi. This is Mary-Lee Kimber Smith from disability rights advocates. And I just wanted to make sort of an observation. As we've been talking, we've been looking and almost struggling with the notion of identity, right, whether you self-identify, whether you don't, what that looks like, what that means. And I would like to think of ourselves as a fairly intelligent group of people and very in touch with the issue, but this is, you know, still a microcosm, a cross section of society that are grappling with these issues, and here we have talked about larger societal changes that need to happen.

So sort of internally we're having a dialogue still that I just think when you look to the larger society, we're struggling with it, information the identity that having a disability means, and I just wonder whether resolving some of these questions, or not resolving them but continuing the discussion around them, would be helpful as a part of like a cultural change or shift.

I sometimes call and I don't think this is a fair or accurate assessment, but you know, psychiatric disabilities sometimes feels like the final frontier in some ways. Certainly there's, as everyone in the room knows, discrimination for every disability on every level, but the stigma associated with psychiatric disabilities is certainly very real.

From my perspective, as we talk about self-identifying, not self-identifying, and that kind of thing, you know, that's something also that we have to come to grips with the cultural change because this is just an observation, I really think that part of the gay rights movement was an outing sort of, it became like a tipping point if you will, where people kind of outed themselves and then, whoa, my neighbor is gay, oh, my... And it was

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easy to hide for some time. And you know, I could see that in terms of this whole identity discussion we're having is, you know, is it an obligation of ours, I don't think it's an obligation, but this is a conversation to have for people who have disabilities to ultimately self-identify, say I'm your neighbor, I'm your friend, I'm your colleague, and that's a part of the cultural shift.

So I've rambled on a bit, but I found this discussion to be really informative and I think incredibly useful as a starting point for part of our mission, which is a cultural shift and change.

ROBERT DINERSTEIN: Absolutely.

Yes, ma'am, at the mic.

>> I would just like to add, Victoria Rodriguez. Our work around disability which has been very active for several years now and highly focused on intellectual and psychiatric disabilities has been precisely focused around the intersectional aspect and need that everyone with a disability also has many other identities, be it LGBATQ, people of color, etc. For the disability movement, stop seeing itself as a separate affair from all the other civil rights and social justice movements out there is important. And for that, the task force is here and we're here to help at doing that.

Joist want to echo all the other calls there.

ROBERT DINERSTEIN: Thank you very much.

>> Hi, I'm Alexis with Legal Aid at Work. And I just wanted to speak to Rabia and Victoria. I'm actually lately been thinking a lot about intersectionality and identities from both sides because I've seen, you know, a lot of signs in the marches that I've been to that forget about disability. But then I'm also seeing a great lack of -- well, I'll put it this way. I'm a founding member of the coalition for Latinxs with disabilities. It is the single organization that I know of that works with a focus on a particular population. And I think it's really important to have these conversations and to bring awareness and bridge building across movements, and I think part of the way we do it is to have these conversations. And they can be really tough.

So now I'm going to shameless plug. Part of the DRBA, we have a diversity task force and it's one of the things I want to see us focus on in the future. So you know, anybody who is a member of that organization, I'm going to be working on that and I would love to talk to you more about how we can have these conversations so that we're all ultimately building a better world for each other and we're taking into account everybody's multiple identities.

ROBERT DINERSTEIN: You know, it's interesting when the women's march in Washington occurred, there were a number of people who were wheelchair users who were there, which was a challenge because it was so crowded, but of the many, many signs, many of which were quite interesting, I think I saw only two that related to disability at all. So I think it goes to this issue of how inclusive we are and other communities are of us.

Dr. Maurer?

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MARC MAURER: Am I the last one?

ROBERT DINERSTEIN: I think we have one more in the back. At least. Oh, two more. So there's somebody now with the mic standing up.

MARC MAURER: Let's take them. I will worry about my comment some other time. Tomorrow probably.

>> Hi, I'm Christian. I'm from the University of Maryland School of Law, and I'm with the National Association of the Deaf as a law intern currently.

I wanted to bring the perspective of someone who isn't -- who wasn't initially engrossed in disability rights prior to this semester, so someone who might share common perceptions about disabled individuals among the mainstream America.

So my father has a disability. So I sort of do have a good -- a decent understanding of how it's not everyone is at an equal footing coming in, at different stages of life.

So I think I heard what a lot of other people said, yes, I know it's been a long day, but I understand how it's important to merge the disability rights movement into all the other movements such as advocacy for let's say women's rights or same sex rights or even let's say racial discrimination. I understand how it's important to do that but the perspective that I want to bring is that it seems that everyone here is very passionate about trying to enable disabled persons to advance in every aspect of life.

I think the problem is that I think mainstream America doesn't view this subgroup as an important group of individuals to the same degree that they view let's say other movements currently taking place, such as the same sex movement, advancing those individuals' rights.

So my main question or concern or food for thought is, how can we bring the needs of disabled individuals and mistreatment towards disabled individuals at a greater national front? I think a lot of what needs to be done, to go back to what you started with in terms of how do we change the culture of the judiciary, I think a lot of it starts with changing the culture of the average American, or the people who we know and we don't know living in our neighborhoods and what their perceptions of disabled individuals are. I think if we can start bringing disability rights movement to the national forefront at a larger scale, I think then that will start penetrate, more into state courts, more into federal courts, starting at the district level and going up to the Court of Appeals and eventually trying to reverse or overturn officially Cleburne and Garrett and any other opinions that we feel are fishy.

So main thing here is I was wondering how we can try to elevate what we have going here to let's say a mass crowd of hundreds of thousands of individuals.

ROBERT DINERSTEIN: It's a great question which won't surprise you we can't answer in the next minute.

I will say not about disability rights but about maybe disability consciousness, and this may sound -- I don't mean this at all to sound trivial. I have a lot of hope from the fact that Sesame Street is adding a character with autism. You see things as children and

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it's part of your natural experience, again, that's a long term strategy -- I kind of miss Sesame Street. But it's a lot of things. It's a multi-prong thing. Some of it is rights consciousness, some disability consciousness, some is working with other groups, some is maintaining separation.

A consequence of Cleburne, pointed out this morning by either Sam or Michael, that if a view toward reviving a more robust view of the constitution will happen, it won't happen across the board for all people who meet ADA level disabilities. It may be most effective with people who have experienced state based discrimination on the basis of disability.

The irony about the Cleburne Garrett cases is that people with intellectual disabilities, there's a very strong connection to legal segregation discrimination which Dr. Maurer started us off today with the eugenics movement discussion. That's really there. You don't have to guess at what the attitudes of judges and legislatures were.

In one of the first progressive rock stations in the late '60s, a wonderful DJ Jonathan Schwartz, when it came to the end of his show, he would say, it is as if by wizardry 10:00 p.m. and I'm signing off.

So it is as if by wizardry 5:30 p.m., and I believe this very attentive crowd wants to get to the reception, Dr. Maurer.

MARC MAURER: There is a reception and there will be food stuffs and drinks and we'll be gathering here in the morning at 8:30.

There is breakfast tomorrow morning at 7:45. You are welcome. Please come.

[Applause]

And I forgot to thank Professor Dinerstein. Maybe you live in Mr. Rogers' neighborhood. Congratulations on running a program. I had no idea where you were going with it but I thought it was a great idea.

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