[blindlaw] Blind Attorneys

[Dennis Clark]

If you are a blind lawyer or second or third year law student please read 
on.  We are pribeleged to be lawyers and this is an appeal for you to join 
with me to begin formulating a long term legal strategy which will enable us 
as blind people to make the same kind of progress in kind and degree as 
other minority groups have made during the past 60 years.  This will involve 
each of us becoming experts on the legal histories of women, blacks, and 
gays, to understand the seminal cases and legislation which has led to their 
progress, and to develop a well thought out, cohesive legal theory for blind 
civil rights which uses the issues and cases of these other groups as 
precedent or persuasive support for our own analogous legal claims.

When I was in law school I was fortunate to get to know one of the attorneys 
who worked on the Jackie Robinson law suit which integrated professional 
baseball.  He was a celebrated law professor and lawyer who participated in 
this law suit as a volunteer civil rights lawyer for B'nai B'rith.  Most of 
the successful civil rights cases which have led to the equality that blacks 
benefit from today were fought by the NAACP Legal Defense Fund and B'nai 
B'rith both together and separately.  Thergood Marshal was also a critical 
global thinker and player with the NAACP Legal Defense Fund and it was those 
successes which led President Johnson to appoint him to the Supreme Court.

My professor told me that the Jackie Robinson case was planned long before 
Jackie Robinson himself was identified as the best plaintiff for the case. 
In the 40's and 50's a group of very brilliant lawyers and law professors 
talked and met together frequently to create a long term legal strategy 
which could shape and reorient the law to achieve civil rights progress for 
both blacks and Jews.  They carefully decided which cases needed to be 
brought ahead of other cases because obviously some cases will become 
seminal and have a larger impact on society than others.

The decision to challenge professional baseballs prohibition against black 
players was one of these key strategic decisions.  Once it was decided to 
file this important case, they set out to find the right player to be the 
plaintiff.  He said that they knew they needed a player who was perfect in 
every way.  The player would need to be a great hitter and be pretty much 
qualified to play every other position on the field at a professional level. 
The key was to have a player who was so unbelievable in every way so that 
any argument which could be made against hiring such a black player would be 
clearly irrational, and as such based purely on racial prejudice.  Beyond 
this, he said that they needed a player who could emotionally withstand the 
abuse which would be aimed at him by players and fans once the case was won 
and he was hired.  He was going to be the target of much hatred, he would 
not be permitted to stay in hotels with the rest of the team in many cities, 
he could not eat in the same restaurants as the rest of the team in many 
cities, and his life really could be at risk.  It was undeniable that this 
was going to take a very special person and they waited quite a while to 
file the suit until they found jus that right person, and that man was 
Jackie Robinson.

The main point here is that the NAACP Legal Defense Fund and B'nai B'rith 
didn't simply file cases willie nillie, but rather they chose cases 
carefully so as to move the courts along slowly but surely.  Filing a 
dubious case where there is a fifty fifty chance of losing would have been 
understood as potentially counter-productive.  Clearly if we as blind people 
win a case we have a precedent in our favor, but if we lose a case this is a 
setback because we have created a precedent that is contrary to our civil 
rights progress.

I am confident that I will be attacked for this, but I believe that we have 
steadily lost ground over the past 30 years in both education and 
employment.  Obviously today's young blind adults can not know this because 
as is true for all people, our reality is shaped mostly by what we are 
experiencing.  Moreover there is a human prejudice that today must always be 
better than yesterday.

but my claim is that those of us who were teenagers and young adults in the 
60's and 70's had more opportunities than similarly situated blind people 
today.  When I took the PSAT, SAT, ACT, GRE LSAT, and 4 bar exams, I was 
given fair exams by competent readers.  To have done less than this in those 
days would have been regarded as unthinkable and absurd by the agencies 
providing these tests because it would have been thought as simply unfair. 
Today one is lucky if the reader provided by any of these agencies is barely 
literate.

For me most of these exams predated the ADA and my claim is that the ADA is 
the problem.  I have dealt with a number of these agencies on behalf of 
disabled clients who have come to me for help, and I can tell you that the 
agencies think the ADA empowers them to simply give blind people a reader of 
the agencies choosing.  On numerous occasions I have been told by 
representatives of these agencies that all they are required to do is 
provide a reader of their choosing.  I point out that the ADA says 
"qualified reader," not just a reader.  Inevitably they then claim that all 
their readers are qualified even though they can not articulate what steps 
they have taken to verify this to be true.  Further discussion usually 
results in a very smug acknowledgement that they hold all the power and if 
we think we can do something about it then go ahead.  They are right.  We 
have become powerless, but that can change if those of us with law school 
educations come together and force a change.

I would be curious to know how many blind students there are today at the 5 
top ranked engineering schools in the U.S.  My guess is zero, but I hope I 
am wrong about this.  Throughout the 60's and 70's there were a number of 
us.  I attended Stanford in Mechanical Engineering from 1977 to 1981 and all 
of my materials were provided to me in Braille including thousands of raised 
line drawings, and without these materials it would have been impossible for 
me to do the program.  One of my engineering professors was a retired 
Admiral from the Navy and one day he asked me if an optacon would be useful 
to me and if I would like one?  I told him that I had a little experience 
with it, but they cost $5000 and I wasn't sure that I could afford it or 
that it would be useful enough to justify the cost.  He had an interesting 
response.  He said, Dennis first of all Stanford is rich so they can afford 
it.  Second, he said, "Stanford admitted you and it is Stanford's 
responsibility to provide you what ever resources you need to be 
successful."  Has anyone heard any professors today say anything like this? 
I think not.  On these forums I have read of a blind college student being 
told by a professor that he could not play in the school band because he was 
blind.  I would have thought that even the dumbest professor in the world 
could have gotten this right simply because of Ray Charles and Stevie 
Wonder.  I recall a law school dean at the University of Alaska stating that 
a blind applicant could not be admitted because blind people can not be 
lawyers.

Another of my professors was Robert Hofstadter.  He had a Nobel prize in 
Physics.  I approached him near the midterm, and asked him if we could 
arrange for someone to read the midterm to me.  He immediately responded, 
Well why don't you come to my office the morning of the test and I will read 
it to you, which he did.  I have read of professors who now shoot their 
exams over to the disability services office to be read aloud by someone 
completely unable to read aloud.  The professor can't be bothered today. 
When we finished Professor Hofstadter said that he wished he could do this 
with every student because he would then really know what students did and 
didn't understand and he would then know what he needed to spend additional 
time on in lectures.

There was no disabled students office to function as an obstacle between my 
professors and me.  There was no disabled students office which had the 
responsibility to provide me with Braille or readers or anything else, and 
this was a plus not a minus because today these offices frequently fall down 
on the job and the student is left completely holding the bag.  No business 
would rely on a vendor which comes through only 60 or 70 per cent of the 
time, particularly when the business has no power over the vendor.  This is 
a formula for disaster and no sensible manager would do this yet blind 
students are now forced into this situation all the time.  Because of this 
lack of accountability by disabled students offices I have recently read a 
discussion where a blind student is asking how he can handle a college math 
class using readers because he doesn't have a Braille math book.  No sighted 
student would be expected to do college math without a print book and they 
can see the board.  During the past 20 years I am confident that we have 
spent tens of millions of dollars on disability student offices and the 
students now have less than we had in the 70's without all this money having 
been spent.  Why?

I  would argue that we as lawyers need to rethink our current situation and 
get a handle on the legal twists and turns that brought us here.  My 
thinking is that we should begin by revisiting Plessy v. Ferguson an the 2 
law school cases which overturned Plessy.  The Supreme Court decided that 
separate but equal can never actually be equal, so Plessy was done away 
with.

However, almost all the law which governs our lives, rights and 
opportunities as blind people is openly based on the notion that separate 
but unequal treatment for us is acceptable.  We actually spend most of our 
time as blind people asking for separate but unequal treatment as an 
accommodation.  Women, blacks, and gays do not do this.  They are clear that 
separate is always unequal and they are having none of it.

Consider this.  When I was in law school an issue arose concerning women law 
school students.  For some reason there is a shower in one of the men's 
restrooms at the University of Chicago Law School.  The law school was built 
in the 50's before there were many if any women law students.  There are 
certainly women's restrooms, but none with a shower.

Men and women alike have taken in recent years to exercising while at school 
and some of them wish to shower after they run or exercise.  This is not a 
problem for men since there is a shower, but what can women do?  It was 
initially proposed that women could go over to the main campus to the gym 
and shower there.  This is about 4 blocks from the law school across the 
midway.  This was a no go as far as women were concerned.  They asked why 
should they have to go a total of 8 blocks round trip to shower when men 
could shower without leaving the law school?  At first the administration 
argued that since women needed to shower because they were already 
exercising then why wouldn't they be willing to go across campus since a 
little additional exercise was all that was being proposed?  However, the 
universal consensus of men and women alike based on common sense and basic 
fairness was that this was not acceptable.  It was viewed as pretty much 
obvious that it would be unfair to expect women to have to do more than men 
when they engaged in the same activity as men.  I dare say that those 
reading this would probably agree and I'm asking you to keep on that same 
fairness hat when you consider the following question.

Why is it fair for a blind person to have to take twice as long on an exam 
as a sighted person in order to obtain an equivalent valid score?  My claim 
is that it is not fair and women would not put up with it for a second. 
Women would tell you to figure out how to do it with out them taking on any 
burden which is greater than that of men.  They would be right.  As a matter 
of testing science and methodology it is possible to create an exam which 
blind people could take in the same length of time which would be equally 
valid, but it is not being done because we have permitted them to dump the 
burden of accommodation on us rather than requiring them to spend more money 
validating their standardized tests.

Would a professional quarterback ever be expected to play football in an 
important game with a center that he has never had the opportunity to 
practice with?  No.  This would be regarded as absurd and totally unfair. 
Yet we are expected to work with readers on exams that our entire futures 
and jobs are dependent upon; with readers who we've never met, tested or 
practiced with and who often can not even read English aloud accurately. 
Women would not put up with this.  Blacks would not put up with this.  We 
do, and the reason we do is that we feel powerless to do anything about it. 
We have come to think like Blanche in A Streetcar Named Desire, that we must 
depend on the kindness of strangers.

I worked for 5 years for a very large law firm, and we never ourselves, nor 
did we ever advise our clients to depend on the kindness of the other side. 
The parties on the other side wanted to win because they wanted their own 
way, and our clients also wanted to win because they wanted their own way. 
There was no kindness on either side and that is how it should be in matters 
of law.  As lawyers it is our mandated responsibility to zealously represent 
our clients which means it is our job to fight them with everything we have 
to make certain that our clients win.  That's what lawyers do.  We are 
priviledged to be lawyers.  We have one power that no one else has.  As all 
non lawyers must acknowledge, you can write thousands of letters to someone 
trying to get them to talk with you and they can throw them in the trash. 
You can light up their switchboard all day long with phone calls and they 
can tell the operator to say that they are not in.  However, we as lawyers 
have the power to force them to talk with us simply by serving a complaint 
on them and they will definitely talk with us in front of a judge.  They 
will not ignore that.

I'm sure I have offended some, bored most, and confused others.  But if you 
are a lawyer and I have struck a chord with you and reawakened for a moment 
a memory of why you went to law school to begin with, please contact me.  We 
have the knowledge and the power to make real change for blind people if we 
choose to come together like the NAACP Legal Defense Fund and B'nai B'rith. 
Thanks for reading and I hope to talk with you.

Warmest regards,
Dennis