Braille Monitor                          February 2019

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Fifty Years After tenBroek: The Right to Live in the World Today and Tomorrow

by Stacie Dubnow

Stacie DubnowFrom the Editor:  Stacie Dubnow’s writings are a welcomed addition to the pages of the Braille Monitor. She is a project manager at the Jernigan Institute, is a lawyer with thirty years of experience, has two published books on Amazon, and is a keen observer and chronicler of meetings in which she participates. I have more to say about her, but this is just the first of many articles she will write for us, so I’ll save some of it. Here is what Stacie has to say about the Jacobus tenBroek Symposium:

On March 22 and 23, 2018, the National Federation of the Blind hosted its eleventh Jacobus tenBroek Disability Law Symposium, "Fifty Years After tenBroek: The Right to Live in the World Today and Tomorrow." The symposium examined Dr. Jacobus tenBroek’s impressive legacy through a present-day lens, focusing on many of the timeless themes addressed in his publications and speeches during his lifetime. More than two hundred disability rights attorneys, scholars, educators, advocates, and others examined topics such as the integration of students with disabilities in the public education system, disparities in healthcare, law enforcement and disability, and discrimination in employment, housing, and transportation.

Dr. tenBroek, after whom the symposium is named, founded the National Federation of the Blind in 1940 and served as its president (with the exception of a brief interval) until his death in 1968. Blinded in a bow and arrow accident during early childhood, his family enrolled him in the California School for the Blind at Berkeley, where he came to be mentored by a great innovator in education of the blind, Dr. Newel Perry.1 Dr. tenBroek graduated with honors from the University of California and the University Law School; not only did he earn five college degrees, but doctorates from both Harvard University and the University of California.2 He became renowned as a brilliant constitutional law scholar, an influential civil rights activist, and an inspirational teacher, writer, and orator.

At the forefront of Dr. tenBroek’s advocacy and scholarship was the goal of achieving for the blind “equal treatment under the law, equal opportunity…, and equal rights within society.” Dr. tenBroek persuasively advocated that there was no one better qualified to improve the lives of the blind than the blind themselves, since “[o]nly the blind themselves can be fully aware of their own problems…” and “…feel an unremitting motivation to secure their rights and further their welfare.”3 Under the leadership of Dr. tenBroek, the National Federation of the Blind became a symbol of independence. During the National Federation of the Blind’s annual national conventions, Dr. tenBroek eloquently spoke on this issue:

It is fundamental to the uniqueness of our group that we are the only nation-wide organization for the blind which is also of the blind. The composition of the NFB, indeed, is living testimony to the fact—unfortunately not yet accepted by society as a whole—that the blind are capable of self-organization: which is to say, of leading themselves, of directing their own destiny.4

Federationism is the synonym of independence—the antonym of custodialism and dependency. It is the blind leading themselves, standing on their own feet, walking in their own paths at their own pace by their own command.5 

Dr. tenBroek became a champion for the rights of the disabled to participate on a full and equal basis in the life of their community. His writings on self-determination, the treatment of minority groups as “separate and unequal,” and the state’s use of police powers to deal with the poor and disabled are as pertinent today as they were sixty years ago. During the 2018 Jacobus tenBroek Disability Law Symposium, keynote speaker Mark Riccobono, the current President of the National Federation of the Blind, reiterated this key principle when he explained: “The Federation’s legal work is central to our mission of full integration of the blind into society on a basis of equality, and this forum is part of our key work to advance the rights of blind people and all people with disabilities very much in the spirit and direction that Dr. tenBroek set for us many years ago.”

President Riccobono posed the question to the participants of the 2018 symposium: “How can we enhance the right of the disabled to live in the world, with all of the liberty, equality, opportunity, and security of our democracy?” He proposed five essentials to doing so. First, ownership—the necessity for people with disabilities to control the direction of the disability rights movement. Second, community—a forum in which members share a common purpose, connect with each other to combat isolation, learn to protect their legal rights, and build leadership skills. Third, power—the need for people with disabilities and disability rights experts to develop positions of leadership, influence, and authority to raise the profile of blind people and the organized blind movement. Fourth, awareness—the importance of advancing public awareness about the capacity of people with disabilities. And fifth—improved tools for self-advocacy and self-expression, which President Riccobono described as key to empowering people with disabilities to protect their rights, oppose inaccessibility and other barriers, and effect change.

The idea of achieving the “full integration of the blind into society on a basis of equality” is embodied in the Declaration of Independence and incorporated into the Fourteenth Amendment.6 Michael Tigar—Professor Emeritus of Law at Duke Law School and Dr. tenBroek’s student, mentee, colleague, and friend—eloquently addressed at the 2018 symposium the right of the blind to live in the world and how “…the Fourteenth Amendment was designed to impose on states the duty to enable them to do just that.”

The symposium’s speakers and workshop facilitators explored ways in which the rights of the disabled have been advanced in recent years, as well as the work that remains to achieve equality and integration. One arena in which speakers reported some recent success was healthcare. Jessica Roberts, the George Butler Research Professor of Law and director of the Health Law & Policy Institute at the University of Houston Law Center, as well as others addressed historical issues people with disabilities have faced accessing healthcare, such as architectural barriers, lack of accessible medical equipment, inaccessible documents, and lack of effective communication. Although individuals with disabilities still encounter myriad obstacles accessing healthcare, Professor Roberts described important strides forward with the passage of the Affordable Care Act (ACA). She described the Act as “[o]ne of the most substantial civil rights victories for people with disabilities in history,” praising the ACA’s prohibition by insurers from using health status when making eligibility determinations. By eliminating consideration by insurers of preexisting conditions and prohibiting rate-setting discrimination, the ACA provides people with disabilities enhanced access to healthcare coverage.

The right of the disabled to live in the world not only includes a right of equal access to healthcare, but also an equal right to education. During the 2018 disability law symposium, plenary session speakers and workshop facilitators addressed the impacts of integration of students with disabilities into the public education system, the US Supreme Court’s 2017 decision in Endrew F. v. Douglas County School District, separate and unequal education for students with disabilities, and the legal rights of students with disabilities in correctional facilities.

As symposium presenters explained, the law provides that individuals with disabilities do not just have a legal right to an education, but they have the right to a free public education appropriate to the student’s individual educational needs in the least restrictive environment.7 That means that children with disabilities to the greatest extent appropriate are required to be educated with children who are not disabled in the same school and classes that the disabled child would attend if not disabled.8

During the symposium, Dr. Wanda Blanchett, dean of Rutgers Graduate School of Education, reviewed the historical treatment of students of color and students with disabilities in the public education system. She explained the history of racial segregation in the United States, including the import of the US Supreme Court’s decisions in Plessy v. Ferguson in 1896 and Brown v. Board of Education in 1954. In overruling the “separate but equal” doctrine established in Plessy, the Supreme Court in Brown v. Board of Education ruled that state laws establishing separate public schools for black and white students were unconstitutional.9 Dr. Blanchett explained that this landmark decision inspired the disability rights movement to mobilize in pursuit of the desegregation of schools for children with disabilities. If black children were entitled to an integrated education with white children, then children with disabilities were entitled to an integrated education with children without disabilities. In 1975 the disability rights community celebrated the passage of the Education for All Handicapped Children Act,10 establishing equal protection under the law for students with disabilities regardless of disability. This was a beginning, but it did not go far enough. To this day, parents and disability rights advocates continue the battle to raise the low bar that still governs the educational benefits students with disabilities are entitled by law to receive in public school.

Ruth Colker—Distinguished University Professor and Heck Faust Memorial Chair in Constitutional Law at the Moritz College of Law at Ohio State University—addressed this topic during the symposium in the context of the recent US Supreme Court decision Endrew F. v. Douglas County School District. The case, which involved an autistic child moved from public to private school when the parents determined the public school was not meeting their child’s educational needs, addressed the standard for determining whether a child with disabilities is receiving a “free and appropriate education.” The issue was whether, if the public school failed to provide a free and appropriate education, the parents could receive tuition reimbursement for private school. In a unanimous decision, the court ruled that to meet its substantive obligation under the Individuals with Disabilities Education Act, a public school is required to offer an “individualized education program reasonably calculated to enable a child to make progress appropriate in the light of the child’s circumstances.”11 The court further held that children should be in the regular classroom whenever possible and that every student has a right to meet high standards and “challenging objectives.”12

Although many considered this decision a victory, Professor Colker expressed ambivalence on two grounds. First, the end result of the case was a placement of a child with disabilities in a private educational environment likely more segregated than the public school environment from which the child had been removed. And second, Professor Colker expressed concern about judicial interpretations of the Endrew decision to justify segregation of children with disabilities rather than to raise the standards for their education.

In addition to addressing the policy of integrationism in the context of the integrated education of disabled children, Dr. tenBroek persuasively advocated for integrated employment for disabled individuals.13 In “The Cross of Blindness,” an address delivered at the 1957 Annual Convention banquet, Dr. tenBroek summarized current day pronouncements by educators, social workers, historians, public officials, and others about the vocational potential for the blind. These purported experts concluded “that employment possibilities for the blind are confined, with only negligible exceptions, to the purview of sheltered workshops…”14 Dr. tenBroek quoted a well-known historian of blindness saying:

‘[T]here exists in the community a body of men who, by reason of a physical defect, namely, the loss of sight, are disqualified from engaging in the regular pursuits of men and who are thus largely rendered incapable of providing for themselves independently. … Rather than let them drift into absolute dependence and become a distinct burden, society is to lend an appropriate helping hand through the creation of sheltered, publicly subsidized employment.

This cynical view was publicly confirmed by Civil Service Commission brochures that concluded that the blind are proficient in manual occupations “requiring a delicate sense of touch” and well-suited to jobs involving repetitive work.15

More than fifty years later, significant discrimination against the blind persists in the area of employment, and disabled people continue to battle paternalistic public attitudes. During the 2018 disability law symposium, Regina Kline, a partner of Brown, Goldstein & Levy, LLP, reported that approximately half a million workers with disabilities continue to be paid subminimum wages. Addressing the continuing struggle for equality in employment by the blind community, Ms. Kline focused on the rights of workers with disabilities in sheltered workshops under Title I of the ADA. Given that sheltered workshops are “employers,” the blind and other disabled individuals employed in these workshops have a legal right under Title I to individualized assessments for reasonable accommodations and, following assessment, to be provided reasonable accommodations. She posed the questions: “If folks were given the accommodations they’re entitled to, would we continue to have subminimum wages?” “Would they have access to greater promotion advancement opportunities within this shop if they were evaluated with the accommodations they needed to be successful?”

Despite the lawsuits that continue to challenge ongoing discrimination against blind employees, courts often ignore the mandate to broadly construe the ADA to further its remedial purpose of eliminating discrimination on the basis of disability. Brian East, a senior attorney at Disability Rights Texas, provided the example during the 2018 symposium of a recent restrictive interpretation of what constitutes a reasonable accommodation. In the 2017 case of Severson v. Heartland Woodcraft Inc., the US Court of Appeals for the Seventh Circuit concluded that, despite the fact that employers must consider leave to an employee as a reasonable accommodation absent undue hardship, a multi-month leave of absence falls outside the scope of a reasonable accommodation under the ADA.16

In addition to the challenges faced by blind and disabled individuals in obtaining equal and integrated employment, they also face barriers in the exercise of their right to equal and integrated transportation. During the 1960 National Convention, Dr. tenBroek aptly noted that “in the routines of daily living … the keynote of our way of life is mobility: the capacity to get around, to move at a normal pace in step with the passing parade.”17 In 1966 he further addressed the right of the blind to move about the world independently, with the same ease of access as everyone else, when he posed the following questions:

Once they [the blind] emerge, must they remain on the front porch, or do they have the right to be in public places, to go about in the streets, sidewalks, roads and highways, to ride upon trains, buses, airplanes, and taxi cabs …? If so, under what conditions? What are the standards of care and conduct, of risk and liability, to which they are held and to which others are held with respect to them? Are the standards the same for them as for the able-bodied?”18

These questions are as relevant today as they were in 1966. During the 2018 Jacobus tenBroek Disability Law Symposium, participants addressed how changing technology is creating new challenges for disabled individuals. Tim Elder of TRE Legal Practice described how the move to a “sharing economy” has affected equal access and integration into society for people with disabilities in the arenas of housing and transportation. As technology platforms like Airbnb, Uber, and Lyft have gained popularity, the blind have had to fight discrimination to refute a contention by these companies that their independent contractors providing services through these platforms are not required to comply with the ADA.

During the symposium, Mr. Elder reported that, as a result of legal efforts and advocacy by the National Federation of the Blind, its affiliates, and counsel, important steps have been taken to end discrimination against the blind. In particular, he described the widely publicized, nationwide class-action settlement with Uber, which requires Uber to transport blind individuals traveling with guide dogs on an equal basis with other passengers. This was the first case of import to apply the ADA to the sharing economy.19

And finally, this year’s disability law symposium addressed the right of the disabled to live with safety and security in the world. The overarching question—framed by speaker Leigh Ann Davis, program manager for the Arc’s National Center on Criminal Justice and Disability—was, “How can we actually create an inclusive society for people with disabilities when we’re ignoring the reality that they face such a higher risk of becoming involved in the criminal justice system?” Topics on this subject included law enforcement and disability, ending police violence against people with disabilities, and the right of all people under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures and the use of unreasonable force.

Fifty-six years ago Dr. tenBroek spoke urgently about the threats to the welfare of the blind posed by police power.20 He understood that an attack against the poor and needy was akin to an attack against the blind and other disabled.

Out of this invasion of welfare by the spirit of crime and punishment comes another vital challenge to our whole system of personal and social security—a threat to the rights of the individual. To call the police is to invoke, not the general welfare powers of the Constitution, but its police powers. …The constitutional powers of the police have in fact been generally relied upon to …. safeguard the health, safety, morals, and wellbeing of the comfortable and the fortunate rather than to relieve the distress and improve the opportunities of the unfortunate. …. Problems of poverty and immorality, of social crisis and economic depression, all are perceived by the law of crimes in the same narrow focus of personal responsibility, to be solved by arrest and investigation, by penal sanctions and retributions.21

Speakers and workshop facilitators during the 2018 disability law symposium addressed the grave threats that people with disabilities face from the criminal justice system. The largest psychiatric inpatient facilities in the United States are jails, and each year, of the thousand shootings resulting in death, a quarter of them involve a person with a disability. Symposium participants discussed the rights of the disabled under the Constitution and the ADA upon arrest, interrogation, detention, and incarceration, including but not limited to the right to be free from unreasonable seizure and cruel and unusual punishment, the right to accommodations, effective communication, and adequate medical care. Although speaker Melissa Reuland, a senior program manager at the Johns Hopkins School of Medicine and a research fellow at the Police Foundation, described a number of programs underway to better educate and train law enforcement to identify individuals with disabilities and afford them their legal rights, police interactions with the autistic, the deaf and hard-of-hearing, and individuals with mental and other intellectual disabilities remain at high risk for wrongful arrest, injury, and indignity. 

The 2018 Jacobus tenBroek Disability Law Symposium provided a forum for disability rights advocates from across the country to address current and future issues concerning the rights of the disabled to live lives of dignity, equality, and full participation in society. While much has been accomplished since Dr. tenBroek wrote, spoke, and advocated for the rights of the disabled more than fifty years ago, much remains to be done before disabled individuals will truly live in the world with equal liberty, opportunity, and security.

In 2019 we once again will bring together the best minds to consider the future of disability law. We hope you will join us when we host the twelfth Jacobus tenBroek Disability Law Symposium on March 28 through 29, 2019, at the NFB Jernigan Institute in Baltimore. The 2019 symposium will address the rights of disabled individuals through an examination of the impact of public attitudes and stigma on their right to live in the world, exploring the intersection of law and public attitudes about disability. We will focus on how public attitudes about disability induce negative stereotypes of the disabled homeless, immigrants, and people with mental health diagnoses, as well as how these attitudes influence treatment under the law of people with disabilities in education, healthcare, employment, housing, and the criminal justice system. Finally, we will explore strategies for combating the stigma and systemic discrimination against individuals with disabilities by, among other methods, exploring how we frame the image of disability in advocacy. 

1. National Federation of the Blind (1990). Jacobus tenBroek: The Man and the Movement, Introduction, 2.

2. National Federation of the Blind (1990). Jacobus tenBroek: The Man and the Movement, Introduction, 2.

3. National Federation of the Blind (1990). Jacobus tenBroek: The Man and the Movement, 1952 Banquet Address, 6-7.

4. tenBroek, Jacobus (1957). 1957 Banquet Address, Banquet of the Annual Convention, “Cross of Blindness,” 1.

5. tenBroek, Jacobus (1964). 1964 Banquet Address, Banquet of the Annual Convention, “The Parliament of Man … The Federation of the World,” 2.

6. tenBroek, Jacobus, & Tussman, Joseph (1949). “The Equal Protection of the Laws.” California Law Review, 37(3), p. 341.

7. 20 U.S.C. §§ 1400(d)(1)(A),(B); 20 U.S.C.A. 1412(a)(5).

8. 20 U.S.C.A. 1412(a)(5).

9. Brown v. Board of Education, 347 U.S. 483 (1954).

10. 88 Stat. 773, Public Law 94-142 (94th Congress, 1st Session, 1975).

11. The Supreme Court in Endrew explains: “The Individuals with Disabilities Education Act (IDEA) offers States federal funds to assist in educating children with disabilities. The Act conditions that funding on compliance with certain statutory requirements, including the requirement that States provide every eligible child a ‘free appropriate public education,’ or FAPE, by means of a uniquely tailored ‘individualized education program,’ or IEP. 20 U.S.C. §§1401(9)(D), 1412(a)(1).”

12. The Supreme Court’s decision in Endrew overruled the decision of the US Court of Appeals for the Tenth Circuit, which had concluded that “a child’s IEP is adequate as long as it is calculated to confer an ‘educational benefit [that is] merely . . . more than de minimis,…’ 798 F.3d 1338.” Endrew F. v. Douglas Country School District, 580 U.S. ___, 137 S.Ct. 988 (2017).

13. tenBroek, Jacobus (1966). “The Right to Live in the World: The Disabled in the Law of Torts.” California Law Review, 54(2), p. 843.

14. tenBroek, Jacobus (1957). 1957 Banquet Address, Banquet of the Annual Convention, “Cross of Blindness,” 6.

15. tenBroek, Jacobus (1957). 1957 Banquet Address, Banquet of the Annual Convention, “Cross of Blindness,” 6.

16. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017).

17. tenBroek, Jacobus (1960). 1960 Banquet Address, Banquet of the Annual Convention, “He Walks by a Faith Justified by Law,” 2.

18. tenBroek, Jacobus (1966). “The Right to Live in the World: The Disabled in the Law of Torts.” California Law Review, 54(2), p. 842.

19. Mr. Elder and other disability law symposium speakers urged the disability rights community to continue to think creatively and strategically about how to best address ongoing problems encountered by blind individuals attempting to independently access self-service kiosks at train stations and airports, and websites to purchase tickets on buses.

20. tenBroek, Jacobus (1962). 1962 Banquet Address, Annual Convention Banquet of the American Brotherhood for the Blind, “Welfare of the Blind: Perils and Prospects,” 1-3.

21. tenBroek, Jacobus (1962). 1962 Banquet Address, Annual Convention Banquet of the American Brotherhood for the Blind, “Welfare of the Blind: Perils and Prospects,” 1-3.

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