Disabling Lawyering: Buck v. Bell and the Road to a More Inclusive Legal Practice

Jacob Izak Abudaram* April, 2023

Demystifying Disability: What to Know, What to Say, and How to Be an Ally. By Emily Ladau. New York: Ten Speed Press. 2021. Pp. 167. $16.

Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. By Paul A. Lombardo. Baltimore: Johns Hopkins University Press. 2022. Pp. xvi, 404. $34.95.

Introduction

Make no mistake: eugenics never left us.¹ While the early twentieth-century version of it centered on the elimination of “feeblemindedness” and lowering taxes for nondisabled people,² today it shows up in conversations around who to save during crises,³ immigration policy,⁴ population control,⁵ and many other areas touching the law. The legal profession itself has a long history of discrimination against disabled people.⁶ While critical progress has been made toward an inclusive legal profession and justice system,⁷ much like broader systemic ableism, there is far more work to be done. As clients and navigators of the legal system, disabled people experience a wide range of unique disparities, including a lack of physical accessibility, a lack of appropriate accommodations from courts and their lawyers, obscure processes, and other forms of direct discrimination.⁸ The harm caused by the severe underfunding of indigent defense is well-documented,⁹ and with the poverty rate for adults with disabilities more than double that for nondisabled adults,¹⁰ disabled people disproportionately bear the burden of that harm.¹¹ It is then unsurprising that nearly 40% of people incarcerated in prisons are disabled¹² despite making up 12.8% of the United States at large.¹³ Finally, with disabled lawyers making up only 0.5% of all attorneys at American law firms,¹⁴ “[i]t is unsurprising that most legal providers do not know how to make their services, offices, and products accessible to [disabled] persons.”¹⁵

Systemic ableism in the legal system is nothing new. Paul Lombardo’s Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell¹⁶ captures a critical and relevant part of that history, documenting the American eugenics movement that led up to Buck v. Bell, the infamous Supreme Court case in which the highest court held that a Virginia statute permitting the compulsory sterilization of disabled people was constitutional.¹⁷ Lombardo’s thorough research captures both the systemic factors at play in Buck and its aftermath. It also captures the personal story of Carrie Buck, whom Virginia officials selected to serve as the plaintiff in the case and who was ultimately sterilized by the state (Lombardo, ch. 8). Three Generations, No Imbeciles also reveals critical failures in lawyering at both the trial and appellate levels, underscoring the consequences of ineffective counsel on both personal and systemic levels (Lombardo, chs. 9–12). Understanding the significance, relevance, and failings of Buck v. Bell is critical for any legal professional working with disabled clients. But that understanding cannot be a solely retrospective one: rather, legal professionals ought to consider how ableism persists today and actively work to eliminate it from their practices.¹⁸ Enter Demystifying Disability.

Emily Ladau’s¹⁹ work provides an accessible blueprint for understanding disabled experiences across history, interacting with and elevating diverse disabled voices today, and ultimately being an ally to the disabled community. She starts with the baseline question —“What is [d]isability, [a]nyway?”—and proceeds to highlight definitions that span far beyond what, say, the ADA-informed lawyer might be familiar with.²⁰ She then provides readers with a number of different models through which to think about disability, the many dos and don’ts of interacting with disabled people, the current state of disability advocacy, and the places where nondisabled people can fit in as allies or “accomplices” (Ladau, pp. 141–49). Given the often-enormous consequences that interactions with the legal system can have for disabled individuals and the damage that the legal system has wrought on the disability community, legal advocates would do well to heed Demystifying Disability’s key themes of unlearning paternalism and being an “accomplice” to the disability community. At a moment when eugenics is again rearing its ugly head,²¹ when disability discrimination is rampant,²² and when the legal rights of disabled people and other marginalized communities are at stake,²³ it is crucial that lawyers have the skills and tools to inclusively work with disabled clients.

This Notice seeks to provide legal professionals with a contextualized set of tools and frameworks for working with disabled clients. Part I draws out important concepts from Lombardo’s accounting of the eugenics movement and Buck v. Bell. Part II discusses the failures in lawyering that pervaded Buck at every stage of litigation. Part III utilizes Demystifying Disability’s lessons on being an ally to the disability community and applies them to the practice of law and legal education.

I. American Eugenics, Albert Priddy, and Laying the Groundwork for Sterilization

Lombardo expands the frame through which we view Buck v. Bell, outlining the history underpinning forced sterilization and the individual actors involved in the case. In so doing, he brings to light many of the pseudoscientific, cultural, and legal issues that disabled people still confront today. Eugenics is “the scientifically erroneous and immoral theory of ‘racial improvement’ and ‘planned breeding.’”²⁴ Support for sterilizing disabled people grew out of the American eugenics movement. Early twentieth-century advocates believed that “the use of methods such as involuntary sterilization, segregation and social exclusion would rid society of individuals deemed by them to be unfit.”²⁵ “Mendel’s theory of inheritance, Francis Galton’s family study methods, and the general passion to eradicate social problems came together in an American institution dedicated to the study of eugenics. In 1910, biologist Charles Benedict Davenport established the Eugenics Record Office (ERO) . . .” (Lombardo, p. 30). Davenport and other well-credentialed scientists raised funds from prominent philanthropic sources like the Carnegie Foundation and the Rockefellers on the idea that eugenics was the way to identify and eliminate socially undesirable traits like “insanity” and “feeblemindedness” (Lombardo, pp. 30–31). A second common rationale was an economic one: “Should we merely stand by to watch philanthropists shower their beneficence on ‘the delinquent, defective and dependent classes’ or even raise the taxes of ordinary Americans to that end?” (Lombardo, p. 31). In other words, supporters argued that eugenics would lessen the tax burden on everyone else by reducing the number of people requiring government support. From this bedrock, wherein wealthy elites funded privileged scientists, it is not hard to see how eugenics would ultimately embed itself into the legal community, where similarly well-credentialed and mostly white men were making most of the decisions.

Eugenics became popular among scientific, academic, and political elites.²⁶ Before sterilization measures became law, some doctors were sterilizing prisoners extralegally (Lombardo, p. 58). Advocacy for sterilization measures grew in the 1910s with doctors loudly claiming that sterilization of women who had succumbed to “diseases” such as alcoholism, syphilis, feeblemindedness, and immorality would “prevent state bankruptcy” (Lombardo, p. 59). The first volume of the Virginia Law Review published Sterilization of the Unfit, which asked “how the ‘blessings of liberty, or full domestic tranquility’ could be enjoyed if persons ‘civilly unfit’ were permitted to ‘procreate their species and scatter their kind’ among normal citizens.”²⁷ State legislatures passed laws permitting sterilization surgeries purportedly designed to benefit the physical, mental, or moral condition of inmates (Lombardo, p. 60). In Virginia, as in other states, physicians at institutions had wide latitude to perform whatever surgeries they thought were “safe and effective” (Lombardo, p. 60). Surgeons like Dr. Albert Priddy, superintendent of the Virginia Colony for Epileptics and Feebleminded, found any and every excuse to sterilize women, describing them as “immoral” and having identified “symptoms” such as “fondness for men,” a reputation for “promiscuity,” being “over-sexed,” “wayward,” “incorrigible,” and many other trumped-up observations.²⁸ Priddy’s work set a clear double standard in which the sexual activities of women were a cause for commitment to an institution and sterilization while similar behavior in men did not warrant the same (Lombardo, p. 63). It seems that for the elites who were often dictating norms and standards of “fitness,” the only people fit to procreate were those who looked, acted, and grew up like them.

After Priddy’s sterilization work came under scrutiny in Mallory v. Priddy,²⁹ he sought to avoid future controversy by advocating in the state legislature for leniency for doctors performing sterilizations (Lombardo, pp. 91–92). He used a model law written by Harry Laughlin, a leader in the eugenics movement, and published by Judge Harry Olson of Chicago’s Municipal Court as part of a comprehensive book on eugenical sterilization (Lombardo, ch. 6). Priddy, along with lawyer and state legislator Aubrey Strode, drafted a law containing careful, politically calculated language that would neither raise alarms for people concerned about sterilization nor be too confusing (Lombardo, pp. 96–100). Rather than rely on any data in advocating for passage of the law, they wrote: “[H]uman experience has demonstrated that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy, and crime” (Lombardo, p. 98). This sort of language effectively moved the question of whether any of those “conditions” were hereditary to an assumption. Sterilization could then be ordered if it was determined that (1) the institutionalized person was “insane, idiotic, imbecile, feeble-minded, or epileptic, and by the laws of heredity is the probably potential parent of socially inadequate offspring likewise afflicted,” (2) that the person could be sterilized “without detriment to his or her general health,” and (3) that both the welfare of the patient and society would be promoted by the operation (Lombardo, p. 99). The bill became Virginia law in 1924 on the same day as the statute that would eventually be overturned in Loving v. Virginia (Lombardo, p. 245).

Immediately following its passage, Priddy sought to manufacture a test case for the law, enlisting Strode to defend the law on behalf of the state.³⁰ Carrie Buck, a resident at the Virginia Colony, was chosen by the state to serve as plaintiff because her mother, Emma, was also a resident at the Colony, making the case for the heredity of feeblemindedness easier for the state to prove (Lombardo, ch. 8). Though the courts would never find out about it, Carrie only ended up at the colony because she was sent there by her foster family after a member of that family raped her (Lombardo, p. 140). There is very little evidence that she had any sort of mental or cognitive disability (Lombardo, p. 103). Despite this, the Virginia board approved Carrie’s sterilization soon after the passage of the law (Lombardo, p. 107).

The case would ultimately make its way to the Supreme Court as Buck v. Bell. There, Justice Oliver Wendell Holmes Jr. would write for an 8–1 majority allowing the state to sterilize Carrie, infamously stating, “Three generations of imbeciles are enough.”³¹ As Part II discusses, the choices of the lawyers involved in the case played no small role in bringing about its outcome.

II. Lawyering Against Disabled People

Under the new sterilization law, Carrie needed an appointed attorney to appeal her sterilization (Lombardo, p. 107). The board hired Irving Whitehead. Lombardo’s account of Mr. Whitehead’s representation reveals a lawyer unequipped for, and perhaps actively opposed to, working with his client. Throughout his representation he made choices that actively harmed Carrie’s case and failed to collaborate effectively with her in his representation. As this Part discusses, his actions and inactions, both at the trial and on appeal, played a critical role in the outcome of the case. Mr. Whitehead’s representation should be a clarion call for lawyers intending to serve as a co-conspirator/accomplice to disabled people. That path is outlined in Part III, after the sad alternative is discussed in this Part.

A. Irving Whitehead’s Inadequate Counsel

Irving Whitehead was a “confidant of Priddy, boyhood friend to Aubrey Strode, former Colony director, and sterilization advocate” (Lombardo, p. 107). Clear conflict of interest notwithstanding, the case proceeded. At trial, Strode called a number of witnesses: teachers that had observed the Buck family in school, social workers that had monitored similar “problem families” in the community, neighbors of the Buck family, and four expert witnesses—two doctors and two eugenic scientists (Lombardo, p. 112). In stark contrast, Whitehead called no witnesses and produced no evidence against the Commonwealth’s case (Lombardo, p. xi). Despite the fact that Strode’s evidence was transparently weak, Whitehead made no rebuttal to the Commonwealth’s argument for surgery. He failed to challenge the allegations made about Carrie and her family specifically, and failed to challenge broader assertions regarding the utility of sterilization and the heredity of “feeblemindedness” (Lombardo, p. 130). And while widely popular, eugenics did not have consensus among prominent scientists, with many having serious doubts about the usage of sterilization and eugenics at large.³² But rather than poking and widening holes in the stories of witnesses on cross-examination to attack Strode’s case for sterilization, Whitehead seemed to actually fill in the gaps in Strode’s case, building the best possible record for both Carrie’s condition and the heredity of feeblemindedness (Lombardo, pp. 117–18, 120).

Strode’s expert witnesses gave weak testimony too. Dr. Joseph DeJarnette, for example, admitted that he had “no accurate knowledge of [how Mendel’s rules apply to humans] because inheritance is such a complicated thing” (Lombardo, p. 123). This statement went unquestioned by Whitehead (Lombardo, p. 126). Whitehead also knew that Carrie did not have a venereal disease, yet failed to challenge any of DeJarnette’s statements that she did (Lombardo, p. 127). DeJarnette had not even examined Carrie. Another expert witness from Strode was Arthur Estabrook, a field worker from the ERO whose goal was to demonstrate how Carrie was “exactly the type of person eugenic laws could eradicate” (Lombardo, p. 128). Whitehead failed here again. First, he failed to dive deeper into Estabrook’s genetic analysis, which claimed that “the taint” in a family line’s “germ plasm” could lie hidden as a recessive trait for generations (Lombardo, pp. 129–30). Whitehead could have pursued a line of questioning here focused on the actual effectiveness of sterilization: if eugenicists believe that many “defects” could lie dormant for generations, what is the point of sterilization? Second, Whitehead should have challenged Estabrook’s contentions regarding what a “socially inadequate” person was—that is, those who were prime targets for sterilization. Estabrook claimed that a socially inadequate person was “anybody who by reason of any sort of defect or condition is unable to maintain themselves according to the accepted rules of society” (Lombardo, p. 129). Who decides what the rules are? A lawyer with an understanding of the intersectional model of disability discussed in Part III would recognize the fallacy of such a normative judgment as to social adequacy and attack it as such. Estabrook had also done a “brief study” of both Carrie’s mother Emma and Carrie’s eight-month-old daughter, Vivian, determining that both were feebleminded.³³ Based on this cursory investigation, he somehow determined that Carrie deserved to be sterilized (Lombardo, p. 130). Unsurprisingly, his conclusion about Vivian ended up being wrong: when she died from measles at age eight (Lombardo, p. 190), she was an average student who had once made the honor roll.³⁴

To succeed, the Commonwealth’s case required that first, Carrie was feebleminded; second, that feeblemindedness is hereditary; and third, that sterilization was an appropriate measure for the Commonwealth of Virginia to take. Whitehead failed in rebutting each of these claims (Lombardo, ch. 10). First, he allowed witnesses to assume her feeblemindedness (Lombardo, p. 138). Many of the witnesses, particularly teachers and neighbors, had never met Carrie and were speaking about her supposed disabilities from second-hand knowledge (Lombardo, p. 138). Legal professionals reading this history of the Buck trial will have “HEARSAY” alarm bells going off.³⁵ Second, even at the time, expert scientists had serious doubts about both the usage of sterilization and eugenics theory more broadly.³⁶ Yet none of these scientists were brought in at trial and Whitehead failed to challenge any of the shaky intellectual or scientific underpinnings of eugenics and sterilization (Lombardo, p. 147). This is despite having had more than nine weeks to prepare for trial with a similar schedule and the same budget as Aubrey Strode, who assembled a dozen witnesses (Lombardo, p. 147). Third, he should have made stronger constitutional arguments under the Eighth and Fourteenth Amendments. “A bystander might reasonably have reached the conclusion that there were two lawyers working for Dr. Priddy and none for Carrie Buck” (Lombardo, p. 127). Unsurprisingly, the state won.³⁷

B. The Appeal and the Aftermath

The legal record that Strode and Whitehead put together at trial left little room for the appellate courts to reverse the decision. Given how few objections Whitehead made at trial to Strode’s evidence, Whitehead could effectively only attack the law itself. The debates over whether Carrie was disabled, whether feeblemindedness is hereditary, and whether the use of sterilization as a tool was appropriate to help rid Virginia of disease and lower taxes could no longer be argued. By the time the case got to the United States Supreme Court, Justice Oliver Wendell Holmes Jr. and Chief Justice William Howard Taft were already longtime eugenics supporters (Lombardo, pp. 161, 163). Strode’s brief to the Court on behalf of Virginia “seemed perfectly fitted to Holmes’s beliefs” (Lombardo, p. 165). It and his oral argument focused on the use of eugenics as a scientific tool and on state police power (Lombardo, p. 165).

Whitehead, on the other hand, focused on the law’s requirement that sterilization accrue some benefit to patients who were sterilized.³⁸ His brief should have instead focused on the judiciary’s deep reluctance to interfere with “the right of every individual to the possession and control of his own person.”³⁹ Whitehead should have distinguished this case from Jacobson v. Massachusetts,⁴⁰ arguing both that the abridgment of personal freedoms is warranted when public health is endangered but not in this situation, and that the permanent harm done to sterilized individuals is far worse than any potential harm a vaccine might have. But by focusing on the facts in the case and the question of the “benefit” that might accrue to patients or to society, Whitehead allowed Strode’s carefully constructed factual record to shine through. This enabled Holmes’s eventual opinion to characterize the sterilization of disabled people as a sacrifice we allow the state to impose:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.⁴¹

The depravity and inaccuracy of Holmes’s opinion in Buck has been well-documented, from his selective use of facts to his overbroad rhetorical flourishes and incoherent logical jumps.⁴² And while having two sitting justices on the Supreme Court openly support the eugenics movement (Lombardo, pp. 161–63) made a Virginia and Strode victory likely in this case, the role of bad lawyering cannot be ignored. The consequences of that bad lawyering have been catastrophic.⁴³ Carrie was sterilized on October 19, 1927 (Lombardo, p. 185). By 1961, over 60,000 people had been sterilized under these statutes across the country, with Virginia sterilizing between 7,200 and 8,300 people between 1927 and 1979, when all Virginia sterilization laws were finally repealed.⁴⁴ The deep ties between American and German eugenicists were well established by the 1930s (Lombardo, p. 199), and the eventual impact that had on the brutality of the Nazi regime has been well-documented.⁴⁵ Most American academics writing about German eugenics supported it: “[T]hey wrote, ‘we don’t like Hitler, but we like this idea.’ And that sort of sentiment was felt among the public at large, as documented in newspapers of the time.”⁴⁶ Dr. DeJarnette, an expert witness in Carrie’s case, was disappointed after tallying the numbers sterilized in Germany and the United States between 1935 and 1939, writing that “[t]he Germans are beating us at our own game” (Lombardo, p. 209). The Nazi regime would go on to carry out a program of approximately 400,000 forced sterilizations, 275,000 euthanasia deaths, and the murder of millions of “racial” enemies including Jews, disabled people, LGBT individuals, and others.⁴⁷

Today, issues around eugenics and involuntary sterilization of disabled people abound. Some states like Virginia have some version of an involuntary sterilization statute, but with extensive due process steps in place before a court may order surgery for someone unable to give informed consent (Lombardo, p. 267). Others, like Arkansas, permit sterilization by court order of people who are unable to care for themselves “by reason of intellectual and developmental disability, mental illness, imbecility, idiocy, or other mental incapacity.”⁴⁸ Those individuals can also be sterilized via petition of parents or guardians.⁴⁹ Elsewhere, immigrant women have been forcibly sterilized by ICE in a number of cases.⁵⁰ The Human Genome Project and related endeavors to understand the genetic roots of various diseases also have implications for eugenics.⁵¹ During the COVID-19 pandemic, eugenics cropped up when hospitals were overwhelmed with cases and attention turned to crisis standards of care—many states and hospital systems disqualified disabled people from receiving life-saving treatment during crises.⁵² The Trump administration also repeatedly endorsed “herd immunity” approaches to the pandemic, “subordinat[ing] the interests of older people, those with disabilities, and members of racial minority groups to others.”⁵³

III. Building Out a New Set of Lawyering Tools

“Think of allyship as a journey, not a destination” (Ladau, p. 143; cleaned up). The process of building a more inclusive legal profession for disabled clients and lawyers has been and will continue to be long. With the consequences of lawyering against disabled people in clear view, this Part calls for a different approach rooted in lawyers being accomplices and co-conspirators with disabled clients. There is inherent tension between what we conventionally understand lawyers to do and what the disability rights and disability justice movements advocate for. Media would have us think that good lawyers are omniscient debaters that always know the best way to win for their clients, regardless of what those clients might actually think or want.⁵⁴ In law school, students devote more time to understanding the theoretical underpinnings of obscure doctrine than figuring out how to manage a relationship with a client. So, new attorneys often lack the lawyering skills they need to succeed.⁵⁵ On the other hand, the disability justice movement stresses solidarity, elevating the most marginalized voices, and the principal of “[n]othing about [u]s without [u]s.”⁵⁶ The lawyer looking to succeed quickly by jumping to craft esoteric legal arguments to convince a judge might leave her client in the dust, without a full understanding of what that client wants or needs.

Drawing from Ladau’s work, this Part provides useful skills and tips for lawyers and legal professionals to build meaningful, co-conspiratorial relationships with disabled clients. Together, you and your clients can solve problems and make the world a bit more accessible and inclusive. Section III.A focuses on tips for currently practicing legal professionals, while Section III.B asks what curricular and cultural shifts ought to happen in law school to produce attorneys that are ready to inclusively serve clients. The positive potential of client-centered lawyering is well documented,⁵⁷ and client-centered lawyering for disabled clients requires a thoughtful approach that Ladau sheds much light on.

A. Accessible Legal Practice

“It starts with accessibility,” says Ladau.⁵⁸ “In an industry where there are few disabled lawyers, where ableism is written into laws like [the Fair Labor Standards Act], and where the ADA has no teeth, lawyers need to be all the more intentional about accessibility when it comes to working with disabled clients.”⁵⁹ This Section provides a list of helpful questions and considerations for lawyers working with disabled clients to ask themselves and work through, while the footnotes provide additional depth to each item.

1. When first setting out to meet with a client, am I using the method of communication that works best for them?⁶⁰

2. Have I asked my client how to make our interactions more accessible to them? A great starting point that will signal that you care about their needs is, “I want to make sure [our meeting] works well for you. Is there anything I can do or any accommodations you might need to make [that happen]?”⁶¹

3. Am I being mindful of what questions I am asking and whether those questions are appropriate given why my client is here?⁶²

4. Am I mirroring the language my client uses to describe their disability status? (Ladau, p. 24). Lawyers should start with “disabled person” or “person with a disability” as a baseline, then adjust language based on how the client talks about their disabilities.⁶³ And never use the R-word (Ladau, p. 22).

5. Have I taken my client to “law school” while encouraging them to take me to “fact school”?⁶⁴ “A good client-centered lawyer will craft their [argument] theory with their client.”⁶⁵ This must necessarily include the adoption of a co-conspiratorial partnership between attorneys and their clients, working to solve that client’s problem while also confronting the legal system we work in that continues to disproportionately harm disabled people.⁶⁶

6. Have I taken extra care to eliminate legal jargon while also making myself clear?⁶⁷ To be sure, there will be times and circumstances in which legalese is appropriate. But “the sign of a very good lawyer is someone who can say [to their client], ‘here’s what’s happening, I’m going to make it clear to you in accessible and plain language.’”⁶⁸

7. Have I put my client in the driver’s seat for major decisions? Many lawyers think they know what’s best for their client, or worse, like Irving Whitehead, see their client as a means to an end. Decisions like whether and who to sue, whether to take a plea deal, and even what major factual/legal arguments to advance should be made with clients and not for clients. Nondisabled advocates act paternalistically when they think they know what is best for a disabled person and they make decisions to help the person without asking if that help was wanted and what the nature of that help ought to be.⁶⁹ Legal professionals should avoid this.

8. Have I taken the time to ensure that my client understands the implications of major decisions? “Everyone processes information differently. Just because you have years of law school and a law degree under your belt doesn’t mean that everybody’s going to process information the same way you do.”⁷⁰

9. Am I actually lawyering for my client and not someone accompanying them? Some disabled clients may be accompanied by a friend, an interpreter, a guardian, or someone else. When communicating with a deaf client who uses an interpreter, look at the client you’re talking to rather than the interpreter (Ladau, p. 97). Legal professionals should be just as clear on who is their client as who isn’t their client. “You’re a lawyer for the client, not the client’s family.”⁷¹ “We are quick to rob disabled people of their autonomy through systems like guardianship. As much as possible, disabled people themselves should be driving the bus and making decisions.”⁷²

10. Have I sought to understand my client’s unique experience within larger disability frameworks? Today’s disability justice movement understands that disability intersects with all other identities, adopts an intersectional lens that centers the experiences of disabled people who hold other marginalized identities, and elevates their voices.⁷³ It pushes back against a mainstream movement that was historically singularly focused on a version of disability that centered whiteness and physical disabilities.⁷⁴ Lawyers working with disabled clients, particularly disabled clients of color, should take an expansive view of disability and its intersections with other forms of oppression.⁷⁵

11. Are there ways for me to advance the disability justice movement while advocating for my client’s needs? This is where a co-conspiratorial or accomplice approach to lawyering for disabled clients enters. An accomplice is someone who works “side by side with people who are marginalized[] to confront the system and contribute to shifting it accordingly” (Ladau, p. 142). A co-conspirator “leverag[es their] privilege in a way that empowers people who don’t have th[at] privilege.”⁷⁶ In the legal context, lawyers have the privilege of being highly educated and comfortable navigating complex systems—traits that their disabled clients may not share. Lawyers should wield that privilege to fight for their disabled clients, leveraging their knowledge, experience, and relationships to create a more accessible and inclusive legal profession. “It’s not about being saviors for our clients.”⁷⁷ Rather, it is about forming a team with your client and not just solving the problem they have in front of them, but confronting the legal system we work in that continues to disproportionately harm disabled people.⁷⁸ Take the time to work through problems with your client, listening closely for what their goals are and how you might be able to work together to achieve them.

12. Have I pushed the court or jurisdiction I work in to be more accessible to disabled litigants? There are many steps that courts can take to increase access to justice for disabled people.⁷⁹

Take a hypothetical case involving an incarcerated client of yours who has been unable to get the prison he is in to fix his broken prosthetic leg. Solving his problem individually might look like meeting with him, understanding exactly what repairs the prosthetic needs, and then meeting with the warden who can send it out for repair. But what happens when the prosthetic breaks again a few months down the line? A co-conspiratorial or accomplice approach could involve bringing a class action suit against the prison system that your client is in, working with him to find other incarcerated people with disabilities in the system who have had prosthetic issues while incarcerated. It might also look like helping him get connected to appellate lawyers in your network to fight the case that has him incarcerated in the first place.

B. Training Future Lawyers More Inclusively

While her law school did offer some accommodations for disabled students, now-Professor Britney R. Wilson “felt afraid to ask for other accommodations that probably would have been helpful.”⁸⁰ Disabled law students and professors have pushed for law schools to reckon with the legal profession’s unwelcoming attitude toward lawyers with disabilities.⁸¹ This reckoning must extend to how law students are taught to treat disabled clients. We must “train lawyers to respect disability and know how to engage with it.”⁸² This work is certainly happening at some law schools. Professor Robert Dinerstein started the Disability Rights Law Clinic at American University Washington College of Law in part because he saw too much bad lawyering for disabled clients.⁸³ “Lawyers would make themselves judges instead of advocates for their clients,” making decisions for those clients based on what the lawyers thought was best for them, rather than understanding the client’s needs and acting on those terms.⁸⁴ Professor Dinerstein also wanted to build out a legal culture around disability that focused on an empowerment model of disability, rather than a deficit model.⁸⁵ He had noticed that so many court proceedings involved lawyers talking about all of the things their clients cannot do, but there was not enough lawyering focused on breaking down barriers to support disabled people and focusing on what they could do.⁸⁶ Today, the clinic at AUWCL prioritizes client-centered, antipaternalistic lawyering that understands that clients know their own lives best and should be the primary decisionmakers.⁸⁷

“Students should be given opportunities to try out making hard decisions with disabled clients.”⁸⁸ While law schools emphasize “thinking like a lawyer,” not enough emphasis is placed on the actual skill building necessary to work successfully with clients. While clinical and experiential courses are not the only places to build client skills, they are important ones—and they deserve more of our focus.⁸⁹ Consider a simulation in which a law student is working with a hypothetical disabled client with cognitive disabilities that does not seem to understand the implications of the three legal options he has. The student must decide what steps to take with this client, working with her professor to craft a plan in which she will try several different ways to communicate with her client and her client’s family/support system, and consult with local disability organizations that can provide advice on how to treat this “client.” If students can practice making tough decisions like this under pressure, but in spaces that do not affect real world clients (or if they do, with supervision), they will be far more prepared to serve actual disabled clients than they would have been otherwise.

As a student at Berkeley Law, Lili Siegel had a real experience with this when working with a clinical client.⁹⁰ Her client was facing a difficult hearing and was offered a settlement. The client initially wanted to go to the hearing and fight their battle. In taking the time to discuss the matter with the client, Lili was concerned that the client did not actually understand that if they went to the hearing, there was a high chance that they could incriminate themselves, with significant consequences for the client’s future.⁹¹ After taking the time to lay out the options and potential ramifications of each one, the client ultimately chose to take the settlement deal.⁹² Currently, the ABA requires that law students enroll in at least six credits of “experiential” education.⁹³ It should consider expanding this requirement to help ensure that future lawyers are prepared to engage thoughtfully with their clients after law school. And professors teaching doctrinal courses should look for opportunities to incorporate the nuts and bolts of communicating and working with clients as they move through core legal doctrine.

Professor Eve Brensike Primus runs the Public Defender Training Institute at Michigan Law, a relatively new immersion program that prepares students to be successful indigent defenders.⁹⁴ When training students to work with disabled clients, she stresses that a lawyer’s job is not to be a “voice for the voiceless.”⁹⁵ Rather, it is instead to be an advisor to and advocate with their client.⁹⁶ Building trust with clients takes time, but entering your client’s framework for how they view the world and getting to know them there can be an effective way to building a better relationship.⁹⁷ When clients and attorneys have better relationships, outcomes for the clients are better.⁹⁸ To Professor Primus, “part of being a good, client-centered lawyer is giving your clients agency in how the legal action proceeds.”⁹⁹ Two dynamics to consider when working with disabled clients are time and resources. This is particularly true for public defenders, who are often stretched thin working dozens of cases (if not more) at any given time.¹⁰⁰ When working with a large caseload, a lawyer may only have small time blocks allocated to each client. The important client-centered activities that are critical to connecting with disabled clients, which are sometimes time intensive, might feel out of reach. Professor Primus teaches her students that while the “gold standard” in all aspects of lawyering may not be achievable, lawyers should know what that “gold standard” is and use a scrappy approach to implement client-centered tactics.¹⁰¹ For some lawyers, that might look like figuring out if there are funds to hire a social worker in your office—a social worker who could provide a vital support function in serving disabled clients. Many cities have social work schools with students looking for internships, too. So, while getting to the “gold standard” of inclusive practice for disabled clients might take some time, it is crucial to understand and strive toward a model of lawyering as an accomplice and co-conspirator.

Conclusion

Today, the fight against ableism and the movement toward a more inclusive legal world continues. As Ladau put it, “ableism is written into the law.”¹⁰² The Fair Labor Standards Act still allows businesses to pay disabled employees pennies on the dollar.¹⁰³ The ADA, while serving as a landmark civil rights law, is difficult to enforce, with costly litigation often being the only remedy disabled people can pursue.¹⁰⁴ Its gaps have been well documented.¹⁰⁵ And today’s Supreme Court seems hostile to disability rights, which deters plaintiffs from filing lawsuits for fear of the ADA being gutted even further.¹⁰⁶ Buck has never been formally overturned. And with the Supreme Court’s recent overruling of Roe, the line of cases that most obviously undermines Buck is severely weakened.¹⁰⁷ With advancements in technology and science allowing us to know more and more about future generations,¹⁰⁸ conversations and, potentially, legislation related to eugenics will come to the forefront. Buck’s powerful expressive message, that some lives matter more than others, continues to shape public norms and legal interpretations about the humanity of Black, Indigenous, and disabled bodies.¹⁰⁹ Disabled people remain under critical threat in our legal system, and we need lawyers prepared to be accomplices and co-conspirators to navigate the turbulent waters ahead.

As discussed in this Notice, there are critical steps that lawyers and lawmakers can take to make both the practice of law and our legal systems more equitable and accessible. However, legal professionals—particularly nondisabled legal professionals—should understand that we only play a support role in the broader movement for disability justice. “[I]t’s absolutely crucial to make sure that people with disabilities are leading the charge in any and all efforts in everything from individual circumstances to major policy decisions.”¹¹⁰ As legal professionals, we can contribute to a more just and equitable world by advocating alongside disabled people and utilizing the privileges we have to navigate complex laws and systems. We can be co-conspirators in the journey toward collective liberation.¹¹¹

* J.D. Candidate, May 2023, University of Michigan Law School. I am grateful to Elena Meth and Gabe Chess for challenging me to make this piece stronger and clearer. Thank you to all MLR Executive Editors past and present: EEs are the backbone of the Michigan Law Review. Thank you also to Professor Mike Steinberg for empowering me to think through these critical lawyering issues, and to Professor Robert Dinerstein, Professor Eve Brensike Primus, and Lili Siegel for their important contributions to this piece. Finally, thank you to Michele and my family, especially Rachel. I hope this piece serves the movement toward a more just and accessible world. All errors are my own.