Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States
Berkeley Law, December 5, 2014
Summary by Chandima Karunanayaka (JD/MSW Candidate 2016)
& Stephanie Skinner (MSW/JD Candidate 2015)
Disability Legal Studies Fellows 2014-2015, Windsor Law, Canada
The much-anticipated conference, Exploring Law, Disability and the Challenge of Equality in Canada and the United States took place on December 5, 2014. Academics, advocates and students flew in from across Canada and the United States to share ideas and develop networks. Yet, most importantly, the conference was an opportunity for likeminded individuals to discuss, develop and challenge one another’s ideas on what is needed to achieve equality for people with disabilities in society. In her opening remarks, Prof. Laverne Jacobs identified the goal of the conference as exploring disability legal studies or the “disability angles” of the law. Over the course of the day, it seems that no stone was left unturned: discussion took place regarding international human rights law, social & economic rights, and processes & procedures for achieving equality. Lastly, we heard from current practitioners in the legal disability rights field. Overall, the conference was a great success and reinvigorated attendees to continue the battle they had begun. Below is a summary of the panels but note that more information about the conference along with a video may be obtained on the conference website: https://www.law.berkeley.edu/17483.htm
Panel 1: Disability and Equality in the CRPD Era
Arlene Kanter commenced the panel by discussing Reframing the Right to Equality and Inclusion for People with Disabilities [CRPD]. Prof. Kanter stated that the CRPD is a leader in many ways, incorporating an ethics of care into a rights-based discourse with this attribute owing partly to the fact that the CRPD was largely written by those directly affected by it. The CRPD recognized that dependency and support are necessary preconditions for all people to lead fruitful lives, challenging the traditional belief that dependency is synonymous with weakness. As Kanter eloquently stated, “A world that only values independence and autonomy will necessarily exclude those people with disabilities…who need others support to exercise their autonomy and independence.” Next we heard from Ravi Malhotra discussing The United Nations Convention on the Rights of Persons with Disabilities in Canadian and American Jurisprudence. Prof. Malhotra stated that although the CRPD has not yet had a major impact in US jurisprudence, the CRPD has the possibility of changing attitudes and norms. Malhotra made the comparison with the Americans with Disabilities Act, which influenced many countries around the world to pass disability rights legislation. In Canada, Malhotra stated that the CRPD has been used thus far only in a few cases. The panel concluded with an audience member advocating for the popularization of CRPD concepts without focusing solely on the law.
Panel 2: Social and Economic Rights for Persons with Disabilities and the Challenge of Equality
The panel on Social and Economic Rights for Persons with Disabilities commenced with Mark Weber using the social model of disability to discuss barriers to immigration in Canada and the United States. In his presentation entitled, “Immigration and Disability in the United States and Canada” a key area on which Prof. Weber presented was class discrimination in current immigration policies. Currently the law does not assume, as it historically did, that disability should act as a barrier to admissibility. Rather entry will be denied if persons with disabilities are deemed to pose an excessive demand on the public purse. From immigration, the panel proceeded to Exploring the Accommodation Gap: Pensions and Income Security for Persons with Disabilities in Canada presented by Prof. Freya Kodar. Currently there is an accommodation gap for persons with disabilities with underemployment resulting in a reduced likelihood of receiving retirement security in old age. In the third presentation, Bonnie Lashewicz spoke on Relational Autonomy and Decision-making by Adults with Disabilities. Prof. Lashewicz began by critiquing the traditional idea of autonomy for being hyper-masculinized and for falsely positioning dependence and autonomy as polar opposites. Rather she promoted the concept of relational autonomy. Relational autonomy was described as individuals making decisions based on their social connections, commitments and interdependencies. Lashewicz found through an empirical study that she conducted with Eniola Salami that family caregivers can both support or hinder the development of autonomy in adults with disabilities. The last presentation of the panel was provided by Elizabeth Pendo on Disability and Health Care. Prof. Pendo shared the challenges posed by inaccessible medical diagnostic equipment for persons with disabilities. Disability incompetency in health care workers, transportation issues and health insurance were named as barriers to receiving adequate healthcare. Pendo argued that the inaccessible health care environment can be improved by alerting the health care providers to their obligations under the ADA.
Panel 3: Challenging Processes and Procedures -Changing the Landscape for PWDs
Whether discussing human rights tribunals, grand jury proceedings, administrative hearings in education, transportation or class action certification, each of the presenters in this panel offered different ways of challenging inequality for persons with disabilities. While they reach different conclusions regarding the best approach to procedure, they all illuminated the ways in which our system of rules and administrative processes shape society and maintain existing power relationships. Moreover, the panellists pointed to the ways in which these processes must be challenged and transformed in order to promote the meaningful existence of people with disabilities in our society.
Aloke Chatterjee, Associate Professor at the Faculty of Law, University of New Brunswick examined the prospect of advancing disability rights through the class action in his paper “Can We Advance Disability Rights through the Class Action?” Prof. Chatterjee problematized the way in which stereotypes of persons with disabilities are used to obtain class action certification. Reinforcing stereotypes of persons with disabilities as inherently vulnerable worked to achieve a positive result for the individuals involved in the class action. However, he argued that imbedding stereotypical reasoning in the law itself fails to foster inclusion in the law and undermines us in a larger societal context. Procedural adjudication has emerged as an important site for the legal construction of disability and vulnerability. Thus, it is especially troubling that judicial discretion at these sites has been exercised contrary to Charter values and human rights principles. It is on these grounds that Chatterjee reluctantly concluded that class actions as a mechanism for advancing disability rights holds less promise than is conventionally thought.
The use of inquisitorial adjudication was a core thread that ran through the work of the next three panellists. Steven Rosenbaum, Lecturer at Berkeley Law, examined adversarial adjudication as a means for resolving education disputes at the administrative level in his paper “Une Procédure en Difficulté: A Radical Blueprint for Resolving “Special” Education Disputes through an Inquisitorial Process“. Rosenbaum argued for an alternative to the adversarial “agency trial” and provided a blueprint for radical change to the process. While it is indubitable that conflicts will arise between the parties, Rosenbaum argued that using the adversarial model to resolve these conflicts threatens to unravel the relationship between families and schools whom he sees as having a “community of shared interest”. In addition, families face barriers in the current system relating to cost, lack of legal representation, formal education and language skills. In drawing upon the use of active adjudication in Canadian administrative law, Rosenbaum advanced a new vision for resolving disputes over special education and designating a pupil’s instructional program. He suggested that educators should act as tribunal members and take an active adjudicative role in leading special education hearings. The knowledge of the education specialist or “special master” will be privileged over the voices of the disabled student and her family. However, the savings in time, cost and angst, he argued, could be channeled instead into more applied research, hiring local district experts, parental involvement inside and outside the classroom, and genuine collaboration between families and professional educators. A provocative concept for consideration.
Carries Griffin-Basas, Appellate and Civil Rights Attorney of Seattle, Washington, presented Advocacy Fatigue: Self-Care, Disability Discrimination, and Legal Attrition. Ms. Griffin- Basas examined conflicts that arise in the educational context between parents, students and administrators. She tackles the realities of marginalized families in the education system and the effect the litigation process has on them. She examines the complexity of the legal processes, the way in which expert knowledge is privileged over the lived experiences of families and how this results in families feeling very alienated from the legal system. The need to advocate for their rights, autonomy and interdependence in the litigation process results in advocacy fatigue or increased strain on emotional, material, social and wellness resources that come from continued exposure to systemic inequities and inequalities. Ms. Basas suggested that there is a need to subvert the professional hierarchy of knowledge and recognize that families and students are de facto policy makers. In addressing these issues, schools must innovate in education to reform internal and structural biases. She concluded that if we are to really address what is wrong with special and general education, we would do well to listen carefully to those most silenced by those who are given the largest platform on which to speak. With this there is a need to demystify the process of education and support families to be involved with the process of policy reform.
Laverne Jacobs, Associate Professor at the University of Windsor, in her paper “Do Disabled Voices Make a Difference?: Exploring Equality and Fairness in the Enactment of Accessibility Standards in Ontario” also promoted a vision of more active adjudication in procedure. Dr. Jacobs examined transportation inequality from the perspective of the voices of persons with disabilities by focusing on the substance of discrimination claims and the decisions made in human rights tribunals across Canada. In looking to tribunal decisions, Dr. Jacobs urged decision-makers to engage in a way that unearths the true story of the claimants in order to truly understand the remedy they seek. In failing to engage in this way, the lived realities of persons with disabilities is subsumed and supplanted by rigid procedure and important discourse is lost. Dr. Jacobs introduced the concept of the ‘universality of the human condition’. The idea is to bring attention to experiences we share through our life as human beings and the goal to have these common experiences acknowledged in the discrimination analysis. It is only through this lens that the voices of persons with disabilities will be captured and true equality can be obtained.
Panel 4: Current Disability Rights Litigation in California
Arlene Mayerson, Attorney at Disability Rights Education Defense Fund (DREDF) and Haben Girma, Skadden Fellow Attorney at Disability Rights Advocates (DRA) offered a look into current disability rights litigation in California. While they recognized the value of alternative legal mechanisms, they showed that litigation remains an important tool for advancing equality rights for persons with disabilities.
The first panelist, Arlene Mayerson, spoke to the genesis, evolution and impact of the Americans with Disabilities Act (ADA). The Act was passed and served to ensure equal access for persons with disabilities to services available in “places of public accommodation”. The limited scope of the legislation, however, has imposed challenges in securing equal access rights to Internet-based services for persons with disabilities.
Mayerson chronicled her litigation journey on behalf of the National Association of the Deaf (NAD) against Netflix for failing to provide captioning in streaming video content. The challenge was that the ADA only stipulates that businesses must provide “full and equal enjoyment” for people with disabilities in all “places of entertainment”. Mayerson successfully argued that Internet based businesses, without a corresponding physical ‘place’, were still subject to the ADA and were therefore obligated to provide accessible services to persons who are deaf and hard of hearing. While such web-based businesses did not exist when the law was enacted in 1990, the court agreed that the Act was intended to adapt to technology changes. The Netflix victory is a significant one for the 36 million people in the United States who are deaf or hard of hearing, as the law now requires all streaming services to offer closed captioning on all streaming video content.
Mayerson’s current focus is on web-based learning and education. She is intent on ensuring that persons with disabilities have full and equal access to education opportunities available online. She warned that a failure to make these materials accessible would usher in a whole new era of segregation, isolation and lost opportunities for deaf and hearing-impaired persons who would not be able to take advantage of these resources. Overall, Mayerson stressed that while the Internet is supposed to be the “biggest boom” for disabled people in terms of opening doors for inclusion, it also has the potential to impose the biggest barriers. She stresses how important these efforts are to the disability rights movement and urges lawyers to be tenacious in arguing for equal access at every juncture.
The second panelist, Haben Girma has experienced enumerable access barriers in her personal life due to limited vision and hearing. In the face of these challenges, Girma became a skilled self- advocate; proving that with tenacity, creativity and a desire to problem-solve, many of the barriers she faced disappeared. After obtaining her degree at Harvard Law, equipped with lived experience and the power of law, Girma embarked on her career as a disability rights attorney with a view to advocate for others. She views technology as the key to access for many people. Whether for work, school or social and recreational purposes, technology plays an important part in the way we connect with one another and navigate our world said Girma.
Using the principles first set out in the Netflix case, Girma performs high impact litigation across the United States with the goal of removing access barriers for persons with disabilities in the context of technology and education. Currently, she is focused on setting and enforcing guidelines for building accessible business websites. The most recent litigation victory for Girma includes a suit filed against Target for failing to make their websites accessible. The court ruled in this case that there is a nexus between the services provided on the Target website and the physical store and the company was therefore obligated under the ADA to make its website fully accessible to persons with disabilities. Building upon the Netflix and Target cases, the DRA has filed suit against Scribd, an online reading service, for failing to meet their obligations under the ADA. Girma is confident that these victories will continue to build upon one another and in the very near future there will be no shortage of good case law in this area.
In conclusion, the conference was an incredible forum to consider an array of viewpoints, critically reflect upon our legal systems and processes and a truly unique opportunity to learn from one another. The various ‘disability angles’ of the law that were presented illuminated countless victories in the equality struggle and offered new insights to put towards the challenges that have yet to be overcome in the pursuit of equality for persons with disabilities in the United States and Canada.