• 07 May 2012

Disability Cause Lawyers

Michael E. Waterstone & David B. Wilkins & Michael Ashley Stein

Extensive scholarship has explored the significance of the Americans with Disabilities Act (ADA) in creating social change. These examinations have largely focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of the statute has stymied potential transformation of American society. Yet, despite considerable academic analyses of the ADA, no study has focused on the lawyers who bring these disability civil rights cases. In a companion piece, we began to explore the role of disability cause lawyers.1 We noted that they differ from predecessor movement advocates by eschewing Supreme Court constitutional litigation in favor of lower federal court public accommodation cases that generate settlements and rulings affecting large numbers of people with diverse disabilities.

Here we build upon this research by interviewing the most active and nationally prominent disability rights attorneys.  These interviews present a snapshot and help tell the story of disability cause lawyers’ activities.  We use these accounts to begin situating disability cause lawyers within the emerging literature on law and social movements. In both tactics and strategy, disability cause lawyers operate similarly to lawyers for other causes. Yet, given the unique political and historical context of the disability rights movement, some important differences emerge that enlarge the understanding of what it means to be a cause lawyer. Finally, these lawyers’ accounts force a reconsideration of academic critiques of the efficacy and transformative potential of the ADA by demonstrating the ways that disability cause lawyers have effectively used the statute to achieve social integration in the shadow of the Supreme Court’s restrictive jurisprudence.

Lawyer Interviews and Methodology

Consistent with our prior research, we focused on lawyers who primarily engage in litigation on behalf of people with disabilities, as opposed to lawyers whose main efforts are on other types of advocacy. Accordingly, we started with the evolving Disability Rights Bar Association (DRBA).2 The DRBA originated with “a group of disability counsel, law professors, legal nonprofits and advocacy groups who share a commitment to effective legal representation of individuals with disabilities.”3 It describes itself as an online community of lawyers “who specialize in disability civil rights law” and facilitate the pursuit of stronger cases through information and strategy exchange, mentorship, and coordination efforts.4

We requested and received permission to contact members of the Executive Committee to see if they would interview for this project, but excluded several members of the Executive Committee who were not actively engaged in litigation. Using convenience sampling, we conducted semi-structured interviews of Executive Committee members in selected cities. We also interviewed several additional lawyers who were repeatedly recommended by the lawyers we first interviewed. This ultimately led to the interview of thirteen lawyers. Twelve were done in face-to-face interviews, and one was done via videoconferencing using the Internet-based program Skype. We asked questions about the following: the lawyers’ respective backgrounds; their current office and organization; the economic model on which such entities were based; the nature of the cases typically brought; their motivations for bringing cases; their views on and involvement with ADA employment litigation; what goals they sought subsequent to litigation and how they hoped to achieve those goals; their views on constitutional disability litigation and the Supreme Court; their views on the role of litigation in the disability movement; the use of the press and other media in their work; and finally, their connections with other disability cause lawyers and lawyers for other social movements.

Our interviewing methodology yielded access to lawyers in private law firms, lawyers affiliated with public interest organizations, and lawyers connected to different disability communities (including the Deaf, visually impaired, those with mental disabilities and psycho-social disabilities, and the mobility impaired), with some geographic diversity. Still, as an initial survey, the cohort we interviewed lacked several representative factors.5

Disability Cause Lawyers as Cause Lawyers

The classic archetype of cause lawyering remains the heroic struggles of the Legal Defense Fund against American apartheid culminating in Brown v. Board of Education,6 and depicts lawyers as the central actors who conceived and led the fight against segregation. This iconic view has been challenged on the ground that cause lawyers were overly optimistic for believing constitutional litigation would remedy their movement’s plight and furthermore were elitists who controlled and papered over schisms within their constituencies while striving to present their cases before the Supreme Court. More recent iterations of cause lawyering take into account the activities of attorneys acting, respectively, on behalf of politically conservative groups and gays and lesbians seeking equality. What emerges in these instances is a more complex dynamic that acknowledges the traditional role lawyers and litigation play while at the same time assessing the prospects for winning political victories through courtroom defeats. Modern social movement lawyers are also more successful in lobbying legislatures as an effective and nonlitigious means of serving their communities, while viewing advocacy as a multidimensional process.

In discussing their successes and failures, disability cause lawyers bear little resemblance to “single-minded and politically naive rights crusaders” who succumb to a myth of rights and a simplistic view of the interplay between litigation and social change.7 Rather, these lawyers closely dovetail with advocates for political conservatives and gay and lesbian groups who view litigation as one form of a larger mobilization strategy, engage in multiple forms of advocacy, and have real, sustained connections to the communities they serve.  In addition, disability cause lawyers resemble their movement advocate peers in that their work generates radiating effects on the targets of their litigation as well as potential allies and the public, mobilizes aligned constituencies within the movement, and generates media coverage with an eye toward raising public awareness and changing consciousness.   And like other groups, disability cause lawyers are deft in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes.

The disability cause lawyer interviews also highlight distinctions from other social movement advocates that question and expand existing understandings of cause lawyers. If we consider Brown v. Board of Education as characterizing a “first wave” of cause lawyering, it presents an instance of a social movement in conflict with an oppressive governmental structure, with the goal of toppling formally instantiated inequality. Lawyers advancing gay and lesbian equality, as well as conservative causes—a “second wave” of cause lawyering—find themselves in consistent and repeated value clashes, popularly thought of as culture wars. For example, advocates for marriage equality consistently find themselves in conflict with advocates for socially conservative groups. Similarly, the pro-life and pro-choice movements are familiar adversaries, finding themselves in opposition against each other in multiple forums.

Post-ADA disability cause lawyers, however, find themselves in a different historical and political context. Unlike other groups, they began with an omnibus civil rights statute enforceable with a private right of action. Moreover, there is no entrenched, large, repetitive antagonist against which disability rights advocates consistently battle. Rather, their task involves educating—and litigating against when necessary—a broad range of employers, businesses, and public entities. Animus is not typically an issue, but bias, stigma, and concerns about cost are constant ideological adversaries.

Despite pursuing multilayered forms of advocacy, lawyers for political conservatives and gay and lesbian groups have focused to some extent on reaching the Supreme Court. In contrast, with less centralization and a better legislative starting place, disability cause lawyers are exceptional for the extent to which they eschew the Court. As one lawyer bluntly put it, “[I]f you don’t need the Supreme Court, don’t use it.” When these lawyers litigate, they are primarily interested in winning through settlement or at the district court level. This victory can then be leveraged to transform other industry actors, ultimately creating cultural changes in the entities they target. When polled about why they bring specific cases, the lawyers were uniformly uninterested in using the courts to dramatically change the landscape of disability law. Rather, the most common answer was some variation of litigating to “make a point.” These lawyers were most interested in bringing cases that changed not only the behavior of the given defendant in the case, but also that of other similarly situated defendants who were not parties to the lawsuit. As one lawyer stated, “We want to know that the work that we put into it—if we’re successful—is going to change society in a fundamental way, and remove barriers to not just the main plaintiff, but to an entire class of people with disabilities.”  Many disability cause lawyers thus avoid employment cases for the express reason that victories in that field, while important, will redound only to individuals seeking individual remedies and will not benefit the greater community of persons with disabilities. Moreover, our research revealed some instances where disability cause lawyers operate more like corporate lawyers in that they respond to the advocacy goals of their highly organized and well-resourced clients. Sometimes this requires litigation, but in other instances the legislature and administrative state are the preferred forums. Although scholars of other social justice groups have noted that lawyers operate in lawmaking arenas outside the courts, disability cause lawyers show particular deftness and comfort in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes.

Disability Cause Lawyers and Disability Law

This research into the strategic motivations of modern disability cause lawyers also yields new insight into how American disability law functions in practice, and thereby both confirms and challenges existing scholarship. Commentators have argued normatively for the ADA’s progressive application and rebuked the Supreme Court’s narrow gatekeeping definition of disability.  Their assessments likewise have critiqued the ADA’s implementation and dourly assessed its efficacy as a civil rights statute. Despite the Court’s parsimonious ADA jurisprudence, the disability cause lawyer interviews revealed a strikingly different picture in practice. The lawyers generally disagreed with the Supreme Court’s ADA decisions. Indeed, many contributed to the ADA Amendments Act of 2008 (ADAAA) that eventually revised those rulings. Yet, the Court’s judgments did not impact their daily work. Simply put, the disability cause lawyers persisted in bringing public services and accommodations cases on behalf of people who met even restrictive definitions of disability and continued to secure meaningful changes in defendants’ programs and businesses.

In a similar vein, scholars have asserted that Supreme Court decisions have undermined ADA enforcement by mooting civil rights attorney fees.8 The disability cause lawyers we interviewed acknowledged that these rulings negatively affected their work, but also explained how they brought cases in states with generous attorney fees and intentionally tailored claims to negate the brunt of the Court’s decisions. Moreover, the lawyers were not inclined to push the limits of class action procedures to bring together diverse categories of people with disabilities, as commentators have championed. Rather, the disability cause lawyers used the class action device when it was expedient to achieve results on a disability-by-disability basis. Thus, even as the ADA and other civil rights statutes fared poorly in the Supreme Court and the resulting decisions were identified by academics as preventing societal transformation, disability cause lawyers achieved significant progress for their clients. As such, the disability cause lawyers incrementally manifest part of the movement’s long-held desire of social integration—the “right to live in the world.”9 Until now, this story has been overlooked amidst the academic assault on the Court’s ADA decisions.

Acknowledgements:

Michael E. Waterstone is the Howard Ziemann Fellow and Professor of Law, Associate Dean of Research and Academic Centers, Loyola Law School Los Angeles.

Michael Ashley Stein is the Cabell Research Professor, William & Mary School of Law, Executive Director, Harvard Law School Project on Disability, and Visiting Professor, Harvard Law School.

David B. Wilkins is the Lester Kissell Professor, Vice Dean for Global Initiatives on the Legal Profession and Director of the Program on the Legal Profession, Harvard Law School.

A version of this article appeared in the March 2012 issue of the William and Mary Law Review: Michael E. Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 WM. L. REV. 1287 (2012).

Copyright © 2012 William and Mary Law Review.

  1. Michael Ashley Stein, Michael E. Waterstone & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010) (book review).
  2. See Disability Rts. B. Ass’n, http://disabilityrights-law.org (last visited Apr. 16, 2012). This organization was formerly called the Association of Disability Rights Counsel. Id. Professor Waterstone is a member of the DRBA.
  3. Id.
  4. Id. DRBA membership is limited to lawyers in nonprofit organizations and private law firms that represent or advise persons with disabilities, individual attorneys representing persons with disabilities, and law school professors who teach or study disability rights law. Id. Members must certify that at least 90 percent of their disability-related work is on behalf of people with disabilities. Id.
  5. Because we targeted locations with multiple interviewees, certain geographic areas are absent. We also did not interview public enforcement officials at either the state (e.g., California’s Department of Fair Employment and Housing) or federal (e.g., Department of Justice) levels. Although much of their work is significant, these officials fall outside our working definition of cause lawyers. We did, however, interview a high-level attorney in the National Disability Rights Network, the largest nonprofit membership organization for the Protection and Advocacy (P&A) network.
  6. 347 U.S. 483 (1954).
  7. Ann Southworth, Lawyers and the “Myth of Rights” in Civil Rights and Poverty Practice, 8 B.U. Pub. Int. L.J. 469, 469 (1999).
  8. See, e.g., Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General, 54 UCLA L. Rev. 1087, 1090-92 (2007).
  9. See Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Calif. L. Rev. 841, 852 (1966).

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