Braille Monitor                                                 July 2011

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Who Was Jacobus TenBroek?

by Lou Ann Blake

Pictured here is the tenBroek family in their Berkeley, California, home in 1958. Left to right they are Nicholas, age five; Anna, age ten; Mrs. tenBroek; Dr. tenBroek; and Jacobus (Dutch), age thirteen.From the Editor: Lou Ann Blake is the member of the tenBroek Library staff who has worked most intensively with the tenBroek papers. Here is her overview of the thinker and the scholar.

Most Federationists know that Dr. Jacobus tenBroek founded the National Federation of the Blind in 1940. However, in 2011, forty-three years after his death from cancer on March 27, 1968, the majority of Federationists may not be aware that Dr. tenBroek was also a constitutional law scholar, a civil rights activist, a leader in the reform of social welfare, and a distinguished national and international humanitarian. From his days as a law student until his death, Dr. tenBroek produced thousands of written documents, including letters, speeches, law review articles, and books. These documents, collectively called the Jacobus tenBroek Personal Papers, provide an insight into who the man really was. This article provides a brief overview of the many facets of Dr. tenBroek's personality through documents found in his papers, which are now part of the Jacobus tenBroek Library at the National Federation of the Blind Jernigan Institute in Baltimore, Maryland.

The Correspondent

Dr. tenBroek was a prolific writer of letters as evidenced by the thousands of letters, both personal and professional, included in the tenBroek papers. His letters reveal a cheerful, enthusiastic man who didn't take himself too seriously. He often started letters to the NFB executive committee with "Dear Gang." Thank-you letters from Dr. tenBroek to participants in the 1966 Institute on the Law of the Poor included phrases such as "you did a bang-up job," and "you were a hit."

Dr. tenBroek's sense of humor is well illustrated in a January 10, 1964, letter in response to an apology from a United States Department of Justice attorney who misspelled Dr. tenBroek's name as "10 Broek" in a citation contained in a Department of Justice brief. Dr. tenBroek wrote, "When it comes to misspelling my name, the ingenuity of man knows no bounds.... The truth is that the ten and the Broek used to be separated, but I pushed them together to try to be filed only in one place." Not missing an opportunity to teach, Dr. tenBroek's letter further states, "...please be assured that I am not in the slightest degree ruffled by what you did to my name. Truth to tell, I could wish that you had better expounded some of the doctrine in the book, however."

The Leader of the Blind Civil Rights Movement

Left to right Russell Kletzing, NFB president; Hubert Humphrey, vice president of the United States; Dr. tenBroek; and Kenneth Jernigan pose at the 1965 NFB national convention banquet.Dr. tenBroek was both a national and international leader of the blind civil rights movement. After founding the NFB in 1940, he was its president until his resignation in 1961. He was re-elected president in 1966 and remained in that office until his death in 1968. Dr. tenBroek was also president of the American Brotherhood for the Blind, an education and charitable foundation now known as the American Action Fund for Blind Children and Adults, from 1945 until his death. On the international front, in 1964 Dr. tenBroek co-founded the International Federation of the Blind, now known as the World Blind Union, and served as its president until his death. He was also a delegate to the World Council for the Welfare of the Blind.

As president of the NFB Dr. tenBroek directed efforts to require sheltered workshops to pay workers a minimum wage, reform the Social Security Act to provide full disability insurance benefits to blind people, and force the United States Civil Service Commission to certify qualified blind people as eligible for civil service jobs. There are hundreds of documents in the tenBroek papers related to these efforts.

The Jacobus tenBroek Personal Papers contain volumes of correspondence from NFB staff in the Washington, D.C., office that kept Dr. tenBroek informed of all developments relating to legislation supported by the NFB, including the progress of bills through the legislative process and which congressmen supported each bill. The papers also contain copies of the testimony by Dr. tenBroek before Congress in support of proposed legislation to amend the Fair Labor Standards Act to require a minimum wage for blind workers in sheltered workshops and to amend the Social Security Act to provide full disability insurance benefits to the blind. Correspondence in the papers also indicates that Dr. tenBroek frequently traveled to discuss the need for this legislation with government officials in Washington, D.C., and in speeches before state affiliate conventions and professional organizations.

A significant victory achieved by Dr. tenBroek and the NFB was the opening of federal civil service jobs to blind people. This achievement began with the NFB's prosecution in the early 1950s of the Kletzing v. Mitchell case on the basis that the United States Civil Service Commission's ruling that Russell Kletzing was ineligible for a civil service job simply because he was blind violated federal law prohibiting discrimination because of a physical handicap. While the Kletzing case was lost due to legal maneuvering by the Civil Service Commission, it forced the Commission to meet with NFB officials, and as a result many civil service positions were opened to the blind. Subsequent to the Kletzing case, correspondence from 1958 indicates that Dr. tenBroek had John Taylor, then head of the NFB's Washington, D.C., office, apply for a high-level management position to determine what the physical requirements for the position were and to test the progress that had been made in hiring blind people for civil service positions.

In the late 1950s and early 1960s the NFB worked to have right-to-organize legislation introduced into the United States Congress to prevent state and local government agencies from discriminating against staff members and clients who were members of the NFB, by threatening them with the loss of jobs or services. The purpose of the right-to-organize bill was to protect the right of blind Americans to self-expression through membership in organizations of the blind. The tenBroek papers contain many letters sent by Dr. tenBroek, NFB staff, state affiliate presidents, and NFB members urging members of Congress to support the right-to-organize bill. Dr. tenBroek organized the testimony of many NFB members, including himself, before a congressional subcommittee in support of the bill. While it was never passed, the awareness raised as a result of the proposed legislation helped to end the overt discrimination against NFB members by most state and local government agencies.

The Constitutional Rights and Welfare Rights Activist

Left to right: Professor Norman Dorsen, New York University; Dr. tenBroek; and Martin Garbus, American Civil Liberties Union, met in the fall of 1967 with twenty lawyers to discuss their litigation of state welfare residence laws and to plan strategy for a United States Supreme Court test.Many of the social welfare reforms advocated by Dr. tenBroek were based in constitutional law. State residency requirements to receive welfare were among several state and local policies attacked by Dr. tenBroek in this manner. Shortly before his death Dr. tenBroek was actively involved in a Connecticut case, Thompson v. Shapiro, in which the plaintiff claimed that Connecticut's requirement of a one-year period of residency to be eligible to receive public assistance violated her constitutional right of interstate travel.

Letters in the tenBroek files indicate that Dr. tenBroek played an active role in the litigation of the Thompson case through his legal scholarship and leadership skills. A law review article by Dr. tenBroek on the right of free movement and materials prepared for Dr. tenBroek's Institute on the Law of the Poor were used by plaintiff Thompson's attorney to support his argument that state residency requirements were unconstitutional. Following the appeal of the district court verdict to the United States Supreme Court, Dr. tenBroek frequently corresponded with Thompson's lawyer regarding the status of the case, the role of the NFB in the case, and which other organizations would be interested in preparing amicus curiae (friend of the court) briefs. Dr. tenBroek took leadership in the submission of amicus curiae briefs to the Supreme Court by supervising the preparation of the NFB’s brief and by soliciting social welfare organizations to submit briefs. In April 1969 the United States Supreme Court held in Thompson v. Shapiro that state residency requirements to receive welfare benefits violated the equal protection clause of the Constitution because they infringed on the fundamental right of interstate travel and were therefore unconstitutional.

Another constitutional law case in which Dr. tenBroek played a leadership role was Parrish v. Civil Service Commission of Alameda County. Benny Parrish was fired from his job as an Alameda County social worker for refusing to participate in mass early morning inspections of homes of county welfare recipients. Parrish refused to participate in the surprise inspections on the grounds that they violated the welfare recipients’ constitutional rights. After both the trial court and intermediate appellate court found the inspections to be acceptable under the state and federal constitutions, the case was appealed to the California Supreme Court.

Correspondence in the tenBroek files indicates that, when the Parrish case was appealed, Dr. tenBroek took the lead in soliciting amicus curiae briefs in support of Parrish from law schools, social work schools, and civil rights and social welfare organizations. Dr. tenBroek reviewed these briefs with Parrish's attorney for legal sufficiency and accuracy and recommended changes. To improve Parrish's chances of winning at the California Supreme Court, Dr. tenBroek organized the effort to have the court of appeals opinion analyzed in law review journals. In addition, according to correspondence in the files, Dr. tenBroek's article "California's Dual System of Family Law" was used as the basis for the arguments in at least one of the amicus briefs.

On March 27, 1967, the California Supreme Court held that the mass raids were unconstitutional because the county social workers who carried them out did not have consent to search the homes and that Parrish had sufficient grounds for refusing to participate in the raids. Included in the tenBroek files are letters from Dr. tenBroek to law school and social work professors jubilantly announcing this victory, as well as letters of congratulation.

In addition to being a constitutional rights activist, Dr. tenBroek was also a champion of academic freedom, as evidenced by his efforts during the University of California loyalty oath controversy and the free speech movement. On June 24, 1949, the regents of the University of California passed a resolution that the university shall employ no member of the Communist Party. As a result all faculty members were required to sign an oath stating that they supported the Constitutions of the United States and of the State of California and that they were not members of the Communist Party. Documents in the tenBroek files indicate that Dr. tenBroek felt that the loyalty oath seriously impaired academic freedom and jeopardized the tenure system.

In response to the loyalty oath requirement, Dr. tenBroek prepared a resolution for introduction into the university academic senate that describes why the principles of academic freedom and tenure are necessary, the role of the board of regents in protecting these principles, and the necessity to involve the faculty in decisions that affect these principles. Drafts of the resolution, as well as a draft of the statement made by Dr. tenBroek before the academic senate, are included in the files. The northern section of the academic senate adopted portions of the tenBroek resolution as a statement of principles regarding the regents' responsibility to foster academic freedom.

Dr. tenBroek's role as defender and champion of academic freedom and civil rights was again center stage during the 1964 free speech movement on the Berkeley campus. In the fall of 1964 the campus administration informed students that student organizations could no longer set up tables on a campus sidewalk to conduct "political" activities, such as raising funds, distributing literature, and recruiting new members. The inability of students and administration officials to reach a compromise acceptable to both sides resulted in student demonstrations that climaxed with the occupation of Sproul Hall by students on December 2, 1964, and the arrest of 763 of these students the following day. Two weeks after the Sproul Hall sit-in, Dr. tenBroek's address to a student rally was captured in a photograph that appeared on the front page of the December 16, 1964, San Francisco Chronicle. The photograph in the edition of this newspaper that is included in the tenBroek files shows Dr. tenBroek standing on a trashcan and balancing his Braille notes on the head of his son Dutch, with a sea of students listening.

Support by the Berkeley faculty of the students arrested at Sproul Hall was galvanized by Dr. tenBroek and several other professors, who prepared a "Suggestion for Dismissal" amicus curiae brief, which was eventually signed by 255 faculty members. Drafts and the final version of this brief, which can be found in the tenBroek files, argue that the charges against the students should be dismissed because United States Supreme Court decisions have justified sit-ins as a means to correct unconstitutional civil wrongs. The brief further argued that issues of academic freedom were involved and that the advocacy and recruitment rights sought by the students had been primarily directed to civil rights purposes. While the arrested students lost their case, the right of students to engage in political activity on campus was fully restored by the university.

The Professor at the University of California, Berkeley

Correspondence in the tenBroek files indicates that, from the beginning of his academic career as a University of California at Berkeley student, Dr. tenBroek's goal was to become a university professor. To achieve his goal, Dr. tenBroek earned an undergraduate degree in history in 1934, a graduate degree in political science in 1935, a law degree in 1938, and a doctorate of law degree in 1940.

After spending one year at Harvard Law School on a Brandeis Fellowship and two years working as a lecturer at the University of Chicago Law School, Dr. tenBroek returned to his alma mater in 1942 as an instructor in the Speech Department. He was promoted to assistant professor in 1946, associate professor in 1947, and full professor in 1953. He was chairman of the Speech Department from 1953 to 1961. In 1963 he transferred to the Political Science Department, where he remained until his death. In addition to teaching, he was also actively involved in the administration of the university, serving in the Academic Senate and on the Academic Freedom and Privilege and the Tenure Committees.

Correspondence in the tenBroek files clearly reveals that Dr. tenBroek was extremely popular with students and that the role of teacher was one he relished. In a September 24, 1965, letter to his son Dutch, written at the end of the first week of classes, Dr. tenBroek says, "The overall university enrollment declined a little--that in my classes skyrocketed. On the first day students were strewn on the floor in the aisles, in the doorways, and for some distance out in the halls." The high regard students had for Dr. tenBroek is further evidenced by the many requests for letters of recommendation to graduate schools and for employment and the recommendations that appear in the tenBroek papers. The overflowing classrooms and many requests for letters of recommendation occurred in spite of the fact that the grade books in the tenBroek papers indicate that Dr. tenBroek was a tough grader, giving out mostly C’s with few B’s and A’s.

The high esteem in which students held Dr. tenBroek is also poignantly revealed by the many letters he received when he was forced by his cancer to go on sick leave one week after the start of the 1967 fall quarter. One student wrote, "I wanted to tell you how grateful I am to have been able to have taken two courses taught by you last quarter." Dr. tenBroek's reply to many of these letters expressed his love for teaching. In a reply to one student he wrote, "As you doubtless realize, I greatly enjoyed my teaching and work with students. Indeed I have been fortunate among men in the satisfaction I have derived from my work. Your letter is ample testimony that many of my students reciprocated my feeling of friendship and support with them."

The Humanitarian and Public Servant

In addition to his work associated with the University of California and organizations of the blind, Dr. tenBroek also worked with many government agencies and private organizations to improve the lives of blind people and the poor. There are many folders of documents in the tenBroek papers related to his membership on the California State Social Welfare Board (SSWB) from 1950 until 1963. He also served as chairman of the SSWB from 1960 to 1963. In addition, he worked as a consultant to many other state and federal welfare agencies and legislative committees. The papers also contain many documents related to his long tenure as a member of the President's Committee on Employment of the Physically Handicapped.

In addition to all of his other tasks, Dr. tenBroek found the time to work with private organizations to provide financial assistance and equipment to blind undergraduate and graduate students. His long association with the Associated Business Girls of California not only provided blind university students with Braillers and tape recorders, but also produced a significant quantity of delightful correspondence.

In 1966 Dr. tenBroek became a member of the Special Advisory Committee to the Smithsonian Institution on an experimental exhibit for the blind. Correspondence between him and Smithsonian officials as well as with his son Dutch indicates that he convinced Smithsonian officials that, rather than provision of a separate exhibit for the blind, the regular exhibits should be made more accessible so that blind people could examine the objects in the collection along with other members of the general public. To this end he provided feedback on what objects would be most appropriate to make accessible.

The Scholar and Orator

As part of his work as first a law student and later a university professor, Dr. tenBroek found the time to produce a considerable number of articles for law review and other scholarly publications in addition to several books. Articles written by Dr. tenBroek that can be found in his personal papers include "The Equal Protection of the Laws," coauthored with Joseph Tussman and published in the California Law Review in 1949; "The Right to Live in the World: The Disabled in the Law of Torts," published in the California Law Review in 1966; "Sheltered Workshops for the Physically Disabled," published in the Journal of Urban Law in 1966; and "California's Dual System of Family Law: Its Origins, Development, and Present Status," published in the Stanford Law Review as a series of articles in 1964 and 1965. Books authored by Dr. tenBroek that may be found in the tenBroek papers include Antislavery Origins of the Fourteenth Amendment, originally published in 1951 and then enlarged and republished in 1965 as Equal Under Law; Prejudice, War and the Constitution, coauthored with Edward Barnhart and Floyd Matson and published in 1954; and Hope Deferred, coauthored with Floyd Matson and published in 1959. Prejudice, War and the Constitution won the 1955 Woodrow Wilson Award as the best book on government and democracy.
The legal scholarship of Jacobus tenBroek on the interpretation and application of the equal protection clause of the Fourteenth Amendment to the United States Constitution changed the way that American courts analyze a discrimination case. In "The Equal Protection of the Laws," tenBroek and Tussman developed the analysis that is used by American courts today to determine if a law improperly discriminates by including or excluding a class of people. Coupled with the analysis of the historical origins and meaning of a law developed in The Antislavery Origins of the Fourteenth Amendment, tenBroek's scholarship helped to establish the equal protection clause of the Fourteenth Amendment as the primary tool used by the courts for remedying historical patterns of discrimination.
In 1953 Dr. tenBroek's equal protection scholarship caught the attention of Thurgood Marshall, then the director and counsel of the NAACP Legal Defense and Education Fund, who was preparing for the reargument of Brown v. Board of Education before the United States Supreme Court. The tenBroek papers contain a letter dated August 18, 1953, from Marshall to Dr. tenBroek which states:

As you know, we are trying to get together as much material as possible for our rearguments of the school segregation cases in the Supreme Court this Fall. We have taken full advantage of your book ‘Anti-Slavery [sic] Origins of the Fourteenth Amendment’ and many of our research people have been using it.

On May 17, 1954, the United States Supreme Court held in Brown v. Board of Education that segregation by race in the public schools was unconstitutional because the "separate but equal" doctrine failed to meet the requirements of the equal protection clause of the Fourteenth Amendment. Thus, Dr. tenBroek's scholarship was instrumental in the dawning of a new era in American civil rights.

With the publication of his article "The Right to Live in the World: The Disabled in the Law of Torts," Jacobus tenBroek established himself as a founding father of American disability law. In this seminal article, Dr. tenBroek wrote about disability as an issue of civil rights rather than an issue of special privilege, that the disabled have the right to live in the world and lead ordinary lives like their nondisabled peers. From "The Right to Live in the World," Dr. tenBroek drafted the model White Cane Law, which established the right of blind and other disabled Americans to be in the world and to use public streets and sidewalks, all modes of public transportation, and public accommodations. Today most states have passed the model White Cane Law in some form. The shift to Dr. tenBroek's view of disability rights as a civil rights issue is also reflected by the passage of federal legislation such as the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Because of Dr. tenBroek's influence the barriers that have prevented the disabled from living in the world are being removed.

In addition to being an important legal scholar, Dr. tenBroek was also recognized as an inspirational orator. During the 1960s he typically gave about twenty-five speeches each year. The tenBroek papers include drafts and final copies of many of his speeches, including the well-known "Within the Grace of God" and "Cross of Blindness," which were delivered at the 1956 and 1957 NFB annual conventions.

The TenBroek Legacy

The tenBroek files are a testimony to what an extraordinary man Dr. Jacobus tenBroek was. He was a leader in the blind civil rights movement and the reform of social welfare, an important constitutional law scholar, a humanitarian, and a beloved university professor. Through the documents contained in the tenBroek papers, his legacy will continue. All Federationists can be inspired by and take great pride in the life and legacy of this extraordinary man.

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