[blindlaw] Blind Attorneys

[Dennis Clark]

If you are a blind lawyer or second or third year law student please read on.  We are privileged 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.  Thurgood 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 privileged 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