Disabling Lawyering: Buck v. Bell and the Road to a More Inclusive Legal Practice
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.
Make no mistake: eugenics never left us.1E.g., Linda Villarosa, The Long Shadow of Eugenics in America, N.Y. Times Mag. (June 8, 2022), https://www.nytimes.com/2022/06/08/magazine/eugenics-movement-america.html [perma.cc/2KPA-YP9J]; Caitlin Fendley, Eugenics Is Trending. That’s a Problem., Wash. Post (Feb. 17, 2020, 6:00 AM), https://www.washingtonpost.com/outlook/2020/02/17/eugenics-is-trending-thats-problem [perma.cc/BH59-JYYQ]. While the early twentieth-century version of it centered on the elimination of “feeblemindedness” and lowering taxes for nondisabled people,2See infra Part I. today it shows up in conversations around who to save during crises,3See Samuel R. Bagenstos, Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols, 130 Yale L.J.F. 1 (2020). immigration policy,4See Samuel R. Bagenstos, The New Eugenics, 71 Syracuse L. Rev. 751, 752 (2021). population control,5E.g., Fendley, supra note 1. and many other areas touching the law. The legal profession itself has a long history of discrimination against disabled people.6See Lilith Siegel & Karen M. Tani, Disabled Perspectives on Legal Education: Reckoning and Reform, 69 J. Legal Educ. (forthcoming 2022). This piece uses the terms “disabled” and “disability” to inclusively and generally describe functional limitations that affect one or more of the major life activities, including (but not limited to) walking, lifting, learning, and breathing. Recent years have seen shifts in terminology here, and the term “disabled people” is commonly used by leaders in the community. For more on this linguistic dynamic, see Disability Language Style Guide, Nat’l Ctr. on Disability & Journalism (Aug. 2021), https://ncdj.org/style-guide [perma.cc/PWL4-G73S]. While critical progress has been made toward an inclusive legal profession and justice system,7On the legal front, the Americans with Disabilities Act (ADA) and several other pieces of legislation preceding it, including Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act, represent meaningful yet unfinished steps forward. See Stephanie Pappas, Despite the ADA, Equity Is Still Out of Reach, Monitor on Psych., Nov./Dec. 2020, at 38, https://www.apa.org/monitor/2020/11/feature-ada [perma.cc/DF6R-AGR9]; Bagenstos, supra note 3, at 5; Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act, 81 U. Colo. L. Rev. 157, 165 n.20 (2010). Yet there are still myriad problems left to solve. See, e.g., Siegel & Tani, supra note 6 (discussing ableism in the legal academy); Zainub Dhanani et al., Deconstructing Ableism in Health Care Settings Through Case-Based Learning, Ass’n Am. Med. Colls. J. Teaching & Learning Res. (May 6, 2022), https://doi.org/10.15766/mep_2374-8265.11253 (discussing ableism in healthcare settings); Catarina Rivera, Addressing Ableism in the Workplace, Inclusively (Feb. 1, 2023), https://www.inclusively.com/news-and-resources/catarina-rivera-addressing-ableism-in-the-workplace [perma.cc/CG79-357P] (discussing ableism in the workplace). 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.8See A.B.A. Comm’n on Disability Rts., Implicit Biases & People with Disabilities, ABA, https://www.americanbar.org/groups/diversity/disabilityrights/resources/implicit_bias [perma.cc/NTJ4-RR9S]. The harm caused by the severe underfunding of indigent defense is well-documented,9See Bryan Furst, Brennan Ctr. for Just., A Fair Fight: Achieving Indigent Defense Resource Parity (2019), https://www.brennancenter.org/sites/default/files/2019-09/Report_A%20Fair%20Fight.pdf [perma.cc/AQT4-JAY3]. and with the poverty rate for adults with disabilities more than double that for nondisabled adults,10 Nanette Goodman, Michael Morris & Kelvin Boston, Nat’l Disability Inst., Financial Inequality: Disability, Race and Poverty in America 12 (2019), https://www.nationaldisabilityinstitute.org/wp-content/uploads/2019/02/disability-race-poverty-in-america.pdf [perma.cc/9RXM-L8NW]. disabled people disproportionately bear the burden of that harm.11See Mark Stephenson, Public Defenders and People with Disabilities, Christian Reformed Church: The Network (Apr. 10, 2018), https://network.crcna.org/disability-concerns/public-defenders-and-people-disabilities [perma.cc/TE5S-6GEJ] (“Inadequate defense is one reason why people with disabilities find themselves incarcerated more often than the general population.”). It is then unsurprising that nearly 40% of people incarcerated in prisons are disabled12 Laura M. Maruschak, Jennifer Bronson & Mariel Alper, Bureau of Just. Stat., U.S. Dep’t of Just., Disabilities Reported by Prisoners 1 (2021), https://bjs.ojp.gov/content/pub/pdf/drpspi16st.pdf [perma.cc/L37A-8EGH]. For a deep analysis of imprisonment and disability in the United States, see generally Disability Incarcerated (Liat Ben-Moshe, Chris Chapman & Allison C. Carey eds., 2014). despite making up 12.8% of the United States at large.13 Rehab. Rsch. & Training Ctr. on Disability Stat. & Demographics, 2017 Disability Statistics Annual Report 2 (2018), https://disabilitycompendium.org/sites/default/files/user-uploads/2017_AnnualReport_2017_FINAL.pdf [perma.cc/QM83-C2GG]. Finally, with disabled lawyers making up only 0.5% of all attorneys at American law firms,14Katie Stancombe, Web Exclusive: Lawyers with Disabilities Speak Out Against Small Numbers, Stigma, The Ind. Law. (Sept. 4, 2019), https://www.theindianalawyer.com/articles/web-exclusive-lawyers-with-disabilities-speak-out-against-small-numbers-stigma [perma.cc/LL44-PVBZ]. “[i]t is unsurprising that most legal providers do not know how to make their services, offices, and products accessible to [disabled] persons.”15Derek J. Dittmar, Disability Access in the Practice of Law – Begin Making Your Law Firms More Accessible for Disabled Employees and Clients with This Simple Checklist, NCBarBlog (May 16, 2022), https://ncbarblog.com/disability-access-in-the-practice-of-law-begin-making-your-law-firms-more-accessible-for-disabled-employees-and-clients-with-this-simple-checklist [perma.cc/36CS-8YFW]. The underrepresentation of disability among attorneys also reflects a pipeline issue, as disabled people have shared myriad concerns about ableism before and during law school on the path to becoming legal professionals. See, e.g., Siegel & Tani, supra note 6; Christine Charnosky, ‘I Felt Afraid to Ask’: Law Students with Disabilities Are Often Torn Between Trying to Fit In and Seeking Accommodations, Law.com (Apr. 26, 2022, 4:44 PM), https://www.law.com/2022/04/26/i-felt-afraid-to-ask-law-students-with-disabilities-are-often-torn-between-trying-fit-in-and-seeking-accommodations [perma.cc/XK9P-BWTQ].
Systemic ableism in the legal system is nothing new. Paul Lombardo’s Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell16Paul Lombardo is a Regents’ Professor and the Bobby Lee Cook Professor of Law, Georgia State University. 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.17274 U.S. 200 (1927). 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.18The sterilization of disabled people continues today too. Lombardo, pp. 283–87 (describing ongoing sterilization abuse in Tennessee, Virginia, Oklahoma, and California, and sterilization abuse toward immigrants in ICE custody). In many situations, incarcerated people were offered time off of their sentences if they agreed to be sterilized—in others, as in California and immigrants in ICE custody, formal processes were not followed and victims were sterilized without their knowledge. Lombardo, pp. 283–87. Enter Demystifying Disability.
Emily Ladau’s19Digital Content & Community Manager, Disability & Philanthropy Forum. 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.20Ladau, pp. 7–10. The ADA covers individuals who have “a physical or mental impairment that substantially limits one or more major life activity,” those who have previously had a disability, and those who are “regarded as having a disability.” What Is the Definition of Disability Under the ADA?, ADA Nat’l Network (Apr. 2023), https://adata.org/faq/what-definition-disability-under-ada [perma.cc/2FM5-6QAF]. Ladau, on the other hand, gives her own definition and asks a number of others for theirs. Ladau, p. 9. “Disability isn’t static. It evolves, both physically and emotionally.” Ladau, p. 9. “Disability is a holistic experience, so it must have a holistic definition. Disability is not just a physical diagnosis, but a lived experience in which parameters and barriers are placed upon our lives because of that diagnosis.” Ladau, p. 9. 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,21See supra notes 1–5 and accompanying text. when disability discrimination is rampant,22See, e.g., sources cited supra note 7. and when the legal rights of disabled people and other marginalized communities are at stake,23See, e.g., Eric Garcia, How This Supreme Court Is Setting Back Disability Rights – Without Even Trying, MSNBC (July 5, 2022, 6:00 AM), https://www.msnbc.com/opinion/msnbc-opinion/supreme-court-s-hostility-disability-rights-discouraging-n1296795 [perma.cc/BX6Y-QYBB]; Michelle Baik, Losing Legal Abortion Options May Hurt Marginalized Groups, Some Worry, NBC15 (May 4, 2022, 12:03 AM), https://www.nbc15.com/2022/05/04/losing-legal-abortion-options-may-hurt-marginalized-groups-some-worry [perma.cc/U77U-Z48G]; Press Release, Office of the High Commissioner for Human Rights, United States: UN Expert Warns LGBT Rights Being Eroded, Urges Stronger Safeguards, (Aug. 30, 2022), https://www.ohchr.org/en/press-releases/2022/08/united-states-un-expert-warns-lgbt-rights-being-eroded-urges-stronger [perma.cc/Z6U5-9CQR]. 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.’ ”24Eugenics and Scientific Racism, Nat’l Hum. Genome Rsch. Inst. (May 18, 2022), https://www.genome.gov/about-genomics/fact-sheets/Eugenics-and-Scientific-Racism [perma.cc/AT7K-7KC9]. 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.”25Id. “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.26Alexander Graham Bell was the first chairman of the board of scientific directors of the ERO. Lombardo, p. 32. The first dean of Johns Hopkins’s medical school was the vice chairman. Lombardo, p. 32. Former President Teddy Roosevelt supported the movement too, writing “I wish very much that the wrong people could be prevented entirely from breeding.” Lombardo, p. 32 (quoting Theodore Roosevelt, Twisted Eugenics, Outlook, Jan. 3, 1914, at 30). 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.”27Lombardo, p. 59 (quoting J. Miller Kenyon, Sterilization of the Unfit, 1 Va. L. Rev. 458, 461–62 (1914)). 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.28Lombardo, pp. 60–61. Many of the women whom Priddy saw were homeless, having fled their families following physical or sexual abuse. Lombardo, p. 61. Priddy described them as “insane,” “defective,” “weak minded,” “illegitimate,” “untruthful,” or “criminal,” all of which were characteristics believed to be hereditary. Lombardo, p. 61. Many women also arrived at the colony pregnant—some babies were taken from them by Priddy who gave them to his friends, and others were given to their mothers’ relatives. Lombardo, p. 61. 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,29A.S. Priddy Grounds of Defence, Mallory v. Priddy (Va. Cir. Ct. Richmond Feb. 16, 1918). 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.30Lombardo, p. 101. There does seem to be an inherent problem in having a state fully orchestrate a test case for a law, allowing the state to select and pay the attorney it will argue against. Adversarial litigation is necessarily underpinned by the contents of its name: two opposing sides. That discussion, however, is outside the scope of this Notice. 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.”31Buck v. Bell, 274 U.S. 200, 207 (1927) (emphasis added). 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.32See infra note 36. 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.33Lombardo, p. 130. Estabrook’s one-day study was based primarily on Emma and Carrie’s medical records. See Lombardo, p. 130. He gave no test to Carrie and gave only a truncated version of an IQ test to Emma. Lombardo, p. 130. He gave the “regular mental test” to Vivian, somehow concluding that she was below average. Lombardo, p. 130. 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 Virginia Daily Attendance Register and Record of Class Grades (1931), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1086&context=buckvbell [perma.cc/5KXY-S82W] (noting that Vivian Buck, going by the name Vivian Dobbs via her adoptive family, made the honor roll in promoting to grade 2a).
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.35See Fed. R. Evid. 801 (requiring nonexpert witnesses to generally have first-hand knowledge of their testimony). Second, even at the time, expert scientists had serious doubts about both the usage of sterilization and eugenics theory more broadly.36Geneticist R.C. Punnett calculated that it would take eight thousand years to eliminate the supposed genetic character for feeblemindedness through segregation or sterilization, while Geneticist Raymond Pearl argued that sterilization laws could not account for “normal” people who carried hidden defects that would appear in later generations. Lombardo, p. 146. H.S. Jennings attacked key parts of the eugenics movement more broadly, including the “unit character” theory that asserted that feeblemindedness was contained in particular unit genes. Lombardo, p. 146. 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.37Lest it seem the inadequacy of Whitehead’s representation is clear only with the benefit of hindsight, Lombardo remarked,
It’s easy to look back at this case and this time with what we know now about both the horrors of eugenics and the facts of the case. So I tried to put myself in his position at that time. And the state’s case would have been even easier to beat back then [than it would be today].
Zoom Interview with Paul A. Lombardo, Regents’ Professor and Bobby Lee Cook Professor of Law, Ga. State Univ. Coll. of L. (Aug. 19, 2022).
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.38Brief for Plaintiff in Error at 17, Buck v. Bell, 274 U.S. 200 (1927) (No. 292), https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1095&context=buckvbell [perma.cc/2M5H-82RF]. 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.”39Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). Whitehead should have distinguished this case from Jacobson v. Massachusetts,40197 U.S. 11 (1905) (upholding the authority of states to enforce compulsory vaccination laws). 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.41Buck, 274 U.S. at 207.
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.42See, e.g., Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a Lost World, 39 Pepp. L. Rev. 101 (2011); Stephen A. Siegel, Justice Holmes, Buck v. Bell, and the History of Equal Protection, 90 Minn. L. Rev. 106 (2005); Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (2016); Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender, & Soc. Just. 607 (2021). 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.43See Jasmine E. Harris, Why Buck v. Bell Still Matters, Harv. L. Petrie-Flom Ctr. (Oct. 14, 2020), https://blog.petrieflom.law.harvard.edu/2020/10/14/why-buck-v-bell-still-matters [perma.cc/Z958-BTMP]. 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.44Meagan Day, How the Supreme Court Allowed Forced Sterilization of Women for 50 Years, Timeline (Oct. 18, 2016), https://timeline.com/supreme-court-forced-sterilization-763f8bfefe48 [perma.cc/6GWG-Q6LQ]; Elizabeth Wong, A Shameful History: Eugenics in Virginia, ACLU of Va. (Jan. 11, 2013, 10:59 AM), https://www.acluva.org/en/news/shameful-history-eugenics-virginia [perma.cc/LU6X-UHW3]; Virginia, Univ. of Vt., https://www.uvm.edu/~lkaelber/eugenics/VA/VAold.html [perma.cc/3SC9-3GNQ]. Skinner v. Oklahoma, a case in which the Supreme Court held that laws permitting the compulsory sterilization of criminals was unconstitutional under the Fourteenth Amendment, came in 1942. 316 U.S. 535 (1942). Unsurprisingly, part of the reason the incarcerated plaintiffs won their case was far better lawyering than that in Buck. Lombardo, ch. 16. 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.45See generally Stefan Kühl, The Nazi Connection: Eugenics, American Racism, and German National Socialism (1994). 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.”46Zoom Interview with Paul A. Lombardo, supra note 37; see also Robert J. Miller, Nazi Germany’s Race Laws, the United States, and American Indians, 94 St. John’s L. Rev. 751, 792 (2020) (“The Nazi regime studied and emulated American laws and policies on [eugenics], avidly and openly interacted with American academics, and applied aspects of American strategies.”); Lily Rothman, More Americans Supported Hitler than You May Think. Here’s Why One Expert Thinks That History Isn’t Better Known, Time (Oct. 4, 2018, 12:00 PM), https://time.com/5414055/american-nazi-sympathy-book [perma.cc/K7AE-FTRF] (noting relatively widespread support for Hitler in America). 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.47Nazi Racial Science, U.S. Holocaust Mem’l Museum, https://www.ushmm.org/collections/bibliography/nazi-racial-science [perma.cc/X9DQ-B9B8]; Gays and Lesbians, U.S. Holocaust Mem’l Museum, https://www.ushmm.org/collections/bibliography/gays-and-lesbians [perma.cc/5LKG-PFPW].
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 Ark. Code Ann. § 20-49-101 (Supp. 2021). The language in this statute was updated in 2019, taking out the term “mental retardation” in an effort to use more respectful language. Lombardo, p. 287. Of course, one might argue that the respectful action would have been to eliminate the law altogether. Those individuals can also be sterilized via petition of parents or guardians.49 Ark. Code Ann. §§ 20-49-102 to 20-49-207 (2018). Elsewhere, immigrant women have been forcibly sterilized by ICE in a number of cases.50Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [perma.cc/5CAN-QUDJ]. The Human Genome Project and related endeavors to understand the genetic roots of various diseases also have implications for eugenics.51Zoom Interview with Paul A. Lombardo, supra note 37; see also Alessandra Suuberg, Buck v. Bell, American Eugenics, and the Bad Man Test: Putting Limits on Newgenics in the 21st Century, 38 Minn. J.L. & Ineq. 115, 129–130 (2020) (discussing the importance of remembering Buck’s legacy to avoid repeating past eugenics mistakes as researchers develop new genomic technologies that can “pin down the genetics of disability, personality, intelligence, mental illness, physical or cosmetic traits, and arguably more controversial phenomena such as assertive mating in humans.” (footnotes omitted)). 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.52See Bagenstos, supra note 3. 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.”53Bagenstos, supra note 4, at 752–53. For a deeper dive into what eugenics looks like today, particularly around COVID and policies under the Trump administration, see generally Bagenstos, supra note 4.
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.54See, e.g., Suits (Universal Content Productions 2011–19) (well-dressed geniuses who know better than everyone else); Perry Mason (Paisano Productions 1957–66) (a criminal defense lawyer always saves the day, even if a bit unconventionally, because he knows best). 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.55See R. Michael Cassidy, Reforming the Law School Curriculum from the Top Down, 64 J. Legal Educ. 428, 430 (2015) (“Both insiders and outsiders to legal education now seem to agree that we need to do a better job of equipping our graduates with the lawyering skills, professional judgment, and ethical values essential to the effective practice of law . . . .”). 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.”56Ladau, pp. 63, 143–44. “Nothing about us without us” has been a bold reminder to disabled and nondisabled communities that autonomy is critical to a more just and accessible world. It was popularized in America by James Charlton, a disability rights activist who wrote a book by that name in 2000. See James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment (1998). 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,57See, e.g., Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered Representation, 12 Clinical L. Rev. 369 (2006); Monroe H. Freedman, Client-Centered Lawyering—What It Isn’t, 40 Hofstra L. Rev. 349 (2011); Julie D. Lawton, Who Is My Client? Client-Centered Lawyering with Multiple Clients, 22 Clinical L. Rev. 145 (2015); Robert A. Baruch Bush, Mediation Skills and Client-Centered Lawyering: A New View of the Partnership, 19 Clinical L. Rev. 429 (2013); Heather Heavin & Michaela Keet, Client-Centered Communication: How Effective Lawyering Requires Emotional Intelligence, Active Listening, and Client Choice, 22 Cardozo J. Conflict Resol. 199 (2021); Jonah A. Siegel, Jeanette M. Hussemann & Dawn Van Hoek, Client-Centered Lawyering and the Redefining of Professional Roles Among Appellate Public Defenders, 14 Ohio St. J. Crim. L. 579 (2017). 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.58Zoom Interview with Emily Ladau, Author of Demystifying Disability: What to Know, What to Say, and How to Be an Ally (July 8, 2022). “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.”59Id. Disabled lawyers make up less than 1 percent of practicing attorneys in the United States. Stancombe, supra note 14. The Fair Labor Standards Act (FLSA) allows employers to pay workers with disabilities subminimum wages. 29 C.F.R. § 525 (1989). Some have argued that the ADA does not provide for enough enforcement mechanisms for disabled people to effectuate their rights. See, e.g., Roy Spiegel, Opinion, A Toothless Law, N.Y. Times (Apr. 24, 1995), https://www.nytimes.com/1995/04/24/opinion/a-toothless-law.html [perma.cc/N5VU-Y83T]; Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022) (ruling that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act or the Affordable Care Act). 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?60See Ladau, p. 78. Different clients will prefer to communicate via telephone, email, Zoom, text message, in-person meetings, or other methods.
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]?”61See Ladau, p. 92. As you get to know your client better, you will both develop a better understanding of how to communicate with each other.
3. Am I being mindful of what questions I am asking and whether those questions are appropriate given why my client is here?62Suppose your client wears a back brace and walks slowly. If the client is arriving at your office to see you about a worker’s compensation case related to an injury he had to his back, then it can be appropriate to ask direct questions about the client’s disability. If, however, that same client was coming to see you for tax advice, it is far less likely that asking about his disability is appropriate.
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.63Ladau, p. 24. If the client tends to refer to themselves as “special needs,” “differently abled,” or some other term, you can use the same language. It’s important to know, however, that these terms have generally fallen out of favor among many in the disability community who argue that these sorts of euphemisms avoid the term “disabled” and only lead to more stigmatization. See David Oliver, ‘I Am Not Ashamed’: Disability Advocates, Experts Implore You to Stop Saying ‘Special Needs,’ USA Today, (June 11, 2021, 12:48 PM), https://www.usatoday.com/story/life/health-wellness/2021/06/11/disabled-not-special-needs-experts-explain-why-never-use-term/7591024002 [perma.cc/4DB9-52JF]. 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”?64Jonah Perlin, #076: Kobie Flowers – Civil Rights & Criminal Defense Lawyer, How I Lawyer Podcast with Jonah Perlin, at 27:35–28:05 (Aug. 10, 2022), https://www.howilawyer.com/076-kobie-flowers-civil-rights-criminal-defense-lawyer [perma.cc/FJB2-2QTQ]. “A good client-centered lawyer will craft their [argument] theory with their client.”65Interview with Eve Brensike Primus, Yale Kamisar Collegiate Professor of L., Univ. of Mich. L. Sch., in Ann Arbor, Mich. (Aug. 24, 2022). 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.66See infra notes 78–80 and accompanying text; see also Jamelia N. Morgan, Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation, 96 Denv. L. Rev. 973 (2019).
6. Have I taken extra care to eliminate legal jargon while also making myself clear?67Do you really need to say, “we got an adjournment,” or can you just say, “we were able to move the trial to a later day”? “Aforementioned” can just be “stated earlier.” “Inter alia” can just be “among other things.” “Instant case” can just be “this case.” See Lucas Hardgrave, What Is “Legalese” and Why Is It Bad?, Legal InSites (Sept. 8, 2016, 10:00 AM), https://www.legalinsites.com/2016/09/08/what-is-legalese-and-why-is-it-bad [perma.cc/39LZ-U8E7]. When Ladau was once working with a lawyer, she found that the lawyer’s language was “inaccessible to me, and I’m someone who communicates verbally, I’m college-educated, and I’m a writer! What does that mean for others?” Zoom Interview with Emily Ladau, supra note 58. 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.’ ”68Zoom Interview with Emily Ladau, supra note 58.
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.69Paternalism shows up across the legal profession. See, e.g., Mark Baer, Lawyer Paternalism Is a Very Serious Problem, HuffPost (Mar. 20, 2015), https://www.huffpost.com/entry/lawyer-paternalism-is-a-v_b_6498348 [perma.cc/UNL4-TGS3]; see also Stanley S. Herr, Representation of Clients with Disabilities: Issues of Ethics and Control, 17 N.Y.U. Rev. L. & Soc. Change 609, 621 (1989) (“Further, the codes permit the paternalistic domineering lawyer to exert unwarranted control over clients who have only mild degrees of disability or only suspected forms of impairment. Since the American Bar Association . . . defines disability in terms of functional limitations—an impaired ability to make adequately considered decisions in connection with representation—lawyers may broadly classify many of their clients as ‘disabled.’ ”). In a disabled client’s day-to-day life, paternalism might show up in situations like when a nondisabled person grabs the arm of a blind person and forcibly “helps” them get somewhere, without asking. Ladau, p. 103. In the courtroom, it might look like a lawyer pushing his disabled client toward a plea bargain without laying out all of the options and consequences of those options because the lawyer thinks that it is the best outcome for them. 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.”70Zoom Interview with Emily Ladau, supra note 58.
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.”71Interview with Eve Brensike Primus, supra note 65. “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.”72Zoom Interview with Emily Ladau, supra note 58. Newer models for how decisions are made regarding the lives of disabled individuals are focused on supported decisionmaking rather than the full supplantation to a guardian. See Salzman, supra note 7.
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.73This includes “disabled people of color, immigrants with disabilities, queers with disabilities, trans and gender non-conforming people with disabilities, people with disabilities who are houseless, people with disabilities who are incarcerated, people with disabilities who have had their ancestral lands stolen, amongst others.” Patty Berne, Disability Justice – A Working Draft by Patty Berne, Sins Invalid (June 10, 2015), https://www.sinsinvalid.org/blog/disability-justice-a-working-draft-by-patty-berne [perma.cc/XP42-3N2P]; Ladau, p. 32. Lawyers should understand that disabled experiences are incredibly diverse and that a disabled person who occupies more than one marginalized identity will have a different experience than someone who holds just one of those identities. See Natalie M. Chin, Centering Disability Justice, 71 Syracuse L. Rev. 683 (2021). It pushes back against a mainstream movement that was historically singularly focused on a version of disability that centered whiteness and physical disabilities.74See Patty Berne et al., Skin, Tooth, and Bone: The Basis of Movement Is Our People (2d ed. 2019); Jennifer L. Erkulwater, How the Nation’s Largest Minority Became White: Race Politics and the Disability Rights Movement, 1970–1980, 30 J. Pol’y Hist. 367 (2018). 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.75Professor Natalie Chin’s racism/ableism consciousness framework, which frames racism and ableism not as mutually exclusive but as systems that work together to reconstitute the subjugation and discrimination experienced by disabled people, is a critical lens through which to push back against this historical focus. Chin, supra note 73.
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.”76Erica Courdae & India Jackson, 88. Disability Allyship with Jennifer Sarrett, Pause on the Play, at 31:34–31:50 (Jan. 5, 2021), https://www.pauseontheplay.com/potp/ep88 [perma.cc/K8FT-DZSP]. For more on co-conspiracy, see Pmsedgwick, User Clip: Dr. Bettina Love Explains What She Means by a Co-Conspirator, C–SPAN (June 8, 2020), https://www.c-span.org/video/?c4880307/user-clip-dr-bettina-love-explains-means-conspirator [perma.cc/3RX5-3PGZ] (clip from We Want to Do More Than Survive (C-SPAN television broadcast Mar. 19, 2019)). 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.”77Interview with Eve Brensike Primus, supra note 67. 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.78Id.; see also, e.g., Morgan, supra note 66 (describing the disproportionate harm). 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.79The National Center for Access to Justice (NCAJ) maintains the Justice Index, which provides a snapshot of the degree to which each U.S. state has adopted best practices in the access to justice space. See Disability Access, Nat’l Ctr. for Access to Just. (2020), https://ncaj.org/state-rankings/2020/disability-access [perma.cc/GWM9-UPYY]. Connecticut and Hawaiʻi rank at the top of Disability Access, measured against NCAJ’s identified best practices. Id. In the 2020 study, NCAJ included twenty-nine best practices for state court systems, including maintaining an accessibility task force of community stakeholders, providing sign language interpreters and a process to monitor and promote the quality of those interpreters, consistently evaluating the accessibility of physical infrastructure, holding accessibility trainings for judges, allowing service animals at all times, and many other important practices. Id. (Benchmarks: Weights and Trends).
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.”80Charnosky, supra note 15. Disabled law students and professors have pushed for law schools to reckon with the legal profession’s unwelcoming attitude toward lawyers with disabilities.81See, e.g., Siegel & Tani, supra note 6. 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.”82Zoom Interview with Lilith [Lili] A. Siegel, Former Bd. Member, Nat’l Disabled L. Students Ass’n, Jud. L. Clerk, U.S. Dist. Ct., N. Dist. of Cal. (Aug. 22, 2022). Her opinions expressed in this interview do not represent the views of the court. 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.83Zoom Interview with Robert D. Dinerstein, Professor of L. and Dir. of the Disability Rts. L. Clinic at Am. U. Washington Coll. of L. (Aug. 22, 2022). “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.84Id. 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.85Id. 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.86Id. 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.87Id.
“Students should be given opportunities to try out making hard decisions with disabled clients.”88Zoom Interview with Lili Siegel, supra note 82. 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.89See Robert Kuehn, The Disparate Treatment of Clinical Law Faculty, Best Pracs. for Legal Educ. Blog (Jan. 4, 2021), https://bestpracticeslegaled.com/2021/01/04/the-disparate-treatment-of-clinical-law-faculty [perma.cc/WJ69-JJZV]. 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.90Zoom Interview with Lili Siegel, supra note 82. Details have been obscured to protect the client’s identity. 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.91Id. After taking the time to lay out the options and potential ramifications of each one, the client ultimately chose to take the settlement deal.92Id. Currently, the ABA requires that law students enroll in at least six credits of “experiential” education.93 Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar, Standards and Rules of Procedure for Approval of Law Schools: 2022–2023 31 (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/2022-2023/2022-2023-standards-and-rules-of-procedure.pdf [perma.cc/3NFJ-M782] (“A law school shall offer a curriculum that requires each student to satisfactorily complete at least. . . one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement.”). 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.94Interview with Eve Brensike Primus, supra note 65. When training students to work with disabled clients, she stresses that a lawyer’s job is not to be a “voice for the voiceless.”95Id. Rather, it is instead to be an advisor to and advocate with their client.96Id. 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.97Id. When clients and attorneys have better relationships, outcomes for the clients are better.98See Phoebe Bower & Pervin R. Taleyarkhan, Building Effective Client Relationships: Practice Tips from In-House, Landslide, Jan.–Feb. 2019, at 38. To Professor Primus, “part of being a good, client-centered lawyer is giving your clients agency in how the legal action proceeds.”99Interview with Eve Brensike Primus, supra note 65. 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.100See Richard A. Oppel, Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times (Jan. 31, 2019), https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html [perma.cc/YDS5-KNCC] (“Of the public defenders in Louisiana handling felony caseloads at that time, there were two dozen with even more [than 194] clients. One had 413.”). Public defense offices (and indigent defense more broadly) are also chronically underfunded. See Teresa Wiltz, Public Defenders Fight Back Against Budget Cuts, Growing Caseloads, Pew Charitable Trs. (Nov. 21, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/11/21/public-defenders-fight-back-against-budget-cuts-growing-caseloads [perma.cc/6J23-D9PH]. 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.101Interview with Eve Brensike Primus, supra note 65. 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.
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.”102Zoom Interview with Emily Ladau, supra note 58. The Fair Labor Standards Act still allows businesses to pay disabled employees pennies on the dollar.103See Sara Luterman, Why Businesses Can Still Get Away with Paying Pennies to Employees with Disabilities, Vox (Mar. 16, 2020, 8:30 AM), https://www.vox.com/identities/2020/3/16/21178197/people-with-disabilities-minimum-wage [perma.cc/JG73-9K7E]. 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.104See Adam Flores-Boffa, The Americans with Disabilities Act: Why It’s Not Enough, San Antonio Rep. (July 16, 2018), https://sanantonioreport.org/the-americans-with-disabilities-act-why-its-not-enough [perma.cc/8M7G-RMRW]. In 2022, the Supreme Court also ruled that emotional distress damages are not recoverable in private actions to enforce either the Rehabilitation Act or the Affordable Care Act. Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022). Its gaps have been well documented.105See Chin, supra note 73, at 690–92. 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.106See Eric Garcia, Opinion, How This Supreme Court Is Setting Back Disability Rights – Without Even Trying, MSNBC (July 5, 2022, 6:00 AM), https://www.msnbc.com/opinion/msnbc-opinion/supreme-court-s-hostility-disability-rights-discouraging-n1296795 [perma.cc/BX6Y-QYBB]. 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.107Skinner v. Oklahoma, 316 U.S. 535 (1942), saw the Supreme Court find an Oklahoma law permitting the compulsory sterilization of habitual criminals unconstitutional. But after Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), other privacy and Fourteenth Amendment cases like Griswold v. Connecticut, 381 U.S. 479 (1965), may be in jeopardy. See Autistic Self Advoc. Network, Dobbs v. Jackson Women’s Health Organization and Its Implications for Reproductive, Civil, and Disability Rights 7 (2022), https://autisticadvocacy.org/wp-content/uploads/2022/06/Dobbs-memo.pdf [perma.cc/9RSJ-Q8R7]. If Griswold is at stake, Skinner will be weakened. Id. And if Skinner doesn’t survive, it is hard to imagine the current Supreme Court overruling Buck v. Bell. With advancements in technology and science allowing us to know more and more about future generations,108See, e.g., Carey Goldberg, The Pandora’s Box of Embryo Testing Is Officially Open, Bloomberg, (May 26, 2022, 5:00 AM), https://www.bloomberg.com/news/features/2022-05-26/dna-testing-for-embryos-promises-to-predict-genetic-diseases [perma.cc/8VVB-JWP3]. 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.109Harris, supra note 43. 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.”110Zoom Interview with Emily Ladau, supra note 58; see also Ladau, pp. 143–44. 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.111See Chin, supra note 73, at 717.