by Lou Ann Blake
From the Editor: Lou Ann Blake is an attorney and works as the HAVA Project manager and Law Symposium coordinator at the Jernigan Institute. Here is her unique perspective on our founder’s work and the role of the National Federation of the Blind in addressing the legal concerns that were at the center of his life:
For the past five years the National Federation of the Blind Jernigan Institute has hosted the Jacobus tenBroek Disability Law Symposium. Since the inaugural event in 2008, disability rights lawyers and advocates have traveled to the Jernigan Institute from throughout the United States, Canada, and Europe to hear nationally and internationally recognized disability rights advocates discuss the current status of disability rights and how the struggle continues for the right of people with disabilities to live in the world. With planning of the 2013 Jacobus tenBroek Disability Law Symposium well underway, it seems like an appropriate time for reflection on why the symposium is important, why it is important that the National Federation of the Blind host this event, and how the symposium can help facilitate change in disability law.
Why the Jacobus tenBroek Disability Law Symposium Is Important
The Jacobus tenBroek Disability Law Symposium provides disability rights advocates an opportunity on a national level and cross-disability basis to gather together to discuss the status of disability law in the United States. Over a hundred-fifty advocates representing more than eighty academic, government, corporate, and advocacy organizations attended the 2012 symposium. The organizations represented included Disability Rights Iowa; the American Diabetes Association; the National Association of the Deaf; Jacksonville Area Legal Aid; Disability Rights Advocates; Yale Law School; Bazelon Center for Mental Health Law; National Disability Rights Network; and Google, Inc. International organizations represented at the symposium have included the National University of Ireland, Galway; the City of Paris; and ARCH Disability Law Centre (Canada).
Through the discussions that occur at the symposium, relationships are built and attendees discover that, on a cross-disability basis, we have many issues in common. When we work together on these common issues, the disability community as a whole is much stronger. The 2012 tenBroek Symposium included a workshop on litigation strategy planning among disability rights organizations. This workshop was co-facilitated by Scott LaBarre, principal of LaBarre Law Offices and president of the NFB of Colorado, and Howard Rosenblum, chief executive officer of the National Association of the Deaf. This workshop resulted in a commitment by the participants to continue the discussion on how disability rights organizations can work together after the symposium. The relationship-building that occurs at the tenBroek symposium also provides an opportunity for the NFB to foster understanding of our view on blindness-specific issues, and we gain a better understanding of issues specific to other disabilities.
Honoring and celebrating the genius of our founder, Dr. Jacobus tenBroek, is one of the primary reasons why the NFB hosts the symposium. Most members are aware that Dr. tenBroek founded the National Federation of the Blind in 1940. However, many of our members may not know that Dr. tenBroek's legal scholarship helped to set the stage for the civil rights movement of the 1950s and 1960s, and was instrumental in changing the treatment of disability rights to a civil rights issue rather than an issue of special privilege.
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," a 1949 California Law Review article, co-authors tenBroek and Joseph 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 Dr. tenBroek's The Antislavery Origins of the Fourteenth Amendment, Jacobus 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.
One of the earliest and most significant applications of Dr. tenBroek's equal protection scholarship was that of the NAACP Legal Defense Fund in the landmark school desegregation case, Brown v. Board of Education. An August 18, 1953, letter to Dr. tenBroek from Thurgood Marshall, then the director and counsel of the NAACP Legal Defense Fund, acknowledged their use of Dr. tenBroek's scholarship in preparation for the reargument of Brown before the United States Supreme Court. On May 17, 1954, the 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 creating a new era in American civil rights.
With the publication of his 1966 California Law Review 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 demonstrated that, based on the self-care and self-support provisions of the Social Security Act, the rehabilitation programs of the states, programs to educate disabled children in the public schools, and the opening-up of civil service jobs to the disabled, the integration of the disabled into the community was the policy of the United States. Therefore, Dr. tenBroek argued, the disabled had the same right to the use of public streets and sidewalks, common carriers, public buildings, and other public accommodations as their nondisabled peers. With this reasoning Jacobus tenBroek helped to shift the perception of disability rights from that of an issue of special privilege to one of civil rights.
Dr. tenBroek's analysis of state tort law in "The Right to Live in the World" revealed a wide variation in substance and in its application by the courts to the disabled. For example, Dr. tenBroek noted that the majority of courts did not find a blind person to be negligent simply because she was walking down a street unaccompanied when she fell into an unprotected, open trench and became injured, while other courts did find negligence. In response to this inconsistency 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 of 1990. Because of Dr. tenBroek's influence, the barriers that have prevented the disabled from living in the world are being removed, and his vision of equality of opportunity for all is closer to becoming reality.
Why It Is Important that the National Federation of the Blind Host the tenBroek Symposium
The National Federation of the Blind is a strong, national organization with resources that are unmatched by other disability rights groups. Our grassroots organization is strong, with over 50,000 members representing affiliates in all fifty states plus the District of Columbia and Puerto Rico. The Jernigan Institute, with its large meeting space and capable staff, is an ideal setting for a disability law symposium. By bringing other disability rights advocates, both disabled and nondisabled, to the Jernigan Institute, we show them what is possible when the disabled are in command of their own destiny and expectations are high.
Since our founding by Dr. tenBroek in 1940, the National Federation of the Blind has been a leader in the disability rights movement. In the early days the fight was for the right of blind Americans to teach in the public schools, travel unaccompanied, and obtain federal Civil Service jobs, among others. Today, in addition to fighting for the rights of blind citizens to have equal access to educational materials, access to appropriate test accommodations, and access to the Internet, our battles for civil rights also include some that have a cross-disability focus. In 2009 the National Federation of the Blind played a leadership role in founding the Reading Rights Coalition, a group of thirty-one organizations representing the print-disability community, to demand equal access to electronic books and ebook readers for all individuals with print disabilities.
Our leadership role in the disability rights movement has continued in 2012 as we spearhead the effort to eliminate subminimum wages paid to workers with disabilities. The National Federation of the Blind is leading the cross-disability push for Congress to pass H.R. 3086, the Fair Wages for Workers with Disabilities Act of 2011, which would phase out the payment of subminimum wages to disabled workers, currently permissible under section 14(c) of the Fair Labor Standards Act. Other disability organizations that have joined us in this fight include the Autistic Self Advocacy Network, United Spinal Association, National Down Syndrome Congress, National Association of the Deaf, American Association of People with Disabilities, and Little People of America.
Through our strength and leadership the National Federation of the Blind has changed and continues to change what it means to be blind in America. When we have issues in common, such as the right to read and the right to be paid a fair wage, the National Federation of the Blind also takes a leadership role to change lives in the cross-disability community. Hosting the Jacobus tenBroek Disability Law Symposium is one of the ways we develop the relationships with other disability organizations that enable the NFB to take a leadership role in the disability community as a whole. This role as a leader in the cross-disability community makes us a stronger organization in our relations with lawmakers and corporate executives as we work to bring Dr. tenBroek's vision of equal opportunity for all citizens closer to its full realization.
How Can the Jacobus tenBroek Disability Law Symposium Facilitate Change in the Law?
The thoughts and ideas expressed at the tenBroek symposia are made available to all for citation in court documents and in scholarly publications. Recordings of all of the plenary sessions from the first five symposia are available free of charge on the NFB website. In addition, articles based on presentations from the 2008, 2009, and 2011 symposia have been published in the Texas Journal on Civil Liberties and Civil Rights, a publication of the University of Texas School of Law. Thus the ideas generated at the symposium may influence disability law and policy when lawyers and judges cite these articles and recordings in their court briefs and opinions or when legal scholars cite them in their writings.
One of the most important ways the Jacobus tenBroek Disability Law Symposium can effect change in the law is through inspiring the next generation of disability rights advocates. Every year the tenBroek symposium provides a growing number of law school students with a unique opportunity to network with leading disability rights advocates from throughout the United States. An intern from Disability Rights Iowa who plans to attend law school said of the 2012 symposium, "I learned so much and met so many amazing people. It really was an inspiring event....” Inspiring law school students to become disability rights advocates with Dr. tenBroek's vision of equality of opportunity for all citizens and the NFB's example of what is possible when expectations are high will help to move disability law in a direction closer to his vision.
Continuing the Struggle for the Right to Live in the World
The sixth Jacobus tenBroek Disability Law Symposium, "Push Forward and Push Back: Continuing the Struggle for the Right to Live in the World," will take place on April 18 and 19, 2013. The symposium will provide disability rights advocates a forum in which to discuss topics such as the United Nations Convention on the Rights of Persons with Disabilities, the impact of the Olmstead case on employment, litigation strategies in kindergarten through secondary education, and the International Treaty on the Right of the Print Disabled to Information. As a consequence of the leadership role of the National Federation of the Blind in bringing together the cross-disability community through the Jacobus tenBroek Disability Law Symposium and the resulting relationships and collaborations, we are able to carry forward Dr. tenBroek's work toward achieving for all citizens equal opportunity for full participation in the society in which we live.