veterans with disabilities

By Ashley Jacobson, Esq., MA, CRC

On July 26, 1990 President Bush signed the Americans with Disabilities Act (ADA) into law. This Act addresses discrimination against people with disabilities with broad-sweeping protections. If you have a physical, mental, cognitive, hearing, visual, or other condition that significantly interferes with one or more major life activities (eating, sleeping, grooming, cooking, etc.); have been diagnosed or recorded as having such a condition; or if you are regarded by others as having a disability this law protects you.

It establishes that people with disabilities must not face discrimination in public, private, transportation, education–pretty much anywhere. And yet, since this law was enacted, people with disabilities have had little luck holding the Act’s violators accountable.

One reason for this, is that the legal battle for fighting disability discrimination in court is tumultuous and COSTLY. With a large portion of the disability community unemployed or underemployed, often because of discrimination in hiring practices, how are people with disabilities to afford lengthy legal battles?

Another issue with enforcing the ADA is that most employers, politicians, parents, friends, and other community members never made the effort to understand the protections afforded in this important piece of law. Ignorance is not an excuse when it comes to enforcing laws, but the lack of general understanding about the ADA outside of the disability community leads to burnout among the disability community’s members, who have to explain and be experts in protecting their rights, AND holding people in positions of power accountable.

This leads to the third issue–many people with disabilities lack a thorough knowledge of their disability rights. The ADA is certainly the most discussed disability rights law, but it is just one of quite a few laws protecting people with disabilities. Even so, after the general purpose of the law, many people don’t know the Act’s specific provisions. If you don’t know the provisions, how can you know every instance those rights are violated? Disability rights attorneys like myself, and educators (special educators and general educators) need to operate on an accessible level, educating the disability community from a young age on how its members are entitled to protections under the law to account for systemic ableism and discrimination that threatens their livelihood, and sometimes–their lives.

However, even when disability rights attorneys know and help those with disabilities, too many attorneys have no training in adapting the legal process to the needs of their clients with disabilities. The legal system is largely inaccessible, and lawyers rarely have the special education and disability rehabilitation counseling work background I have. They don’t change how the documents look so that their clients with visual disabilities can read them. They don’t adapt their questions in legal consultations to account for communication differences. They don’t know, what they don’t know, but that’s never an excuse. Lawyers, of all specialties, need to approach each client with individual assessments of how the legal system can be adapted to involve them in their cases.

Let’s say that the person knows his rights, has a job or can afford an attorney, that attorney is knowledgeable in serving people with disabilities, that attorney adapts the legal process to the client’s needs, and there is a clear violation of the ADA. Depending on where the discrimination takes place, it can be extremely challenging holding the guilty party accountable.

Too frequently, the person in charge of implementing punishment or holding wrong-doers accountable has no background in assessing circumstances for a person with a disability. The state’s department of civil rights takes on too few cases, shows difficulty in upholding disability rights and holding discriminators accountable, and routinely ignores complaints against people who work for community agencies, professional groups, employers, etc. If the department of civil rights isn’t the person who holds the guilty discriminator accountable, even the courts have difficulty in deciding how severe the punishments should be. They assess the remedies under the law incorrectly, because they wrongly assume people with disabilities wouldn’t make as much money in their jobs or would have a more restricted working past or future. This is important, because punishments under the law take into account loss of work and pay when determining how much money someone should receive once they win the lawsuit. If the judge or jury decides you deserve less, especially because they are unaware of their biases against people with disabilities, plaintiffs are at-risk of being under rewarded and remedied even if they win their cases.

Additionally, for workplace discrimination issues, the lawmakers who enacted the ADA decided that small workplaces can be excused for discriminating against the disability community. If the number of employees is small, employers may be able to discriminate without consequence. There are holes in the ADA that must be addressed.

The ADA was certainly a start–but 30 years later, we can do better. We shouldn’t settle for a law written decades prior, when we can address disability equality needs today. Travel, schools, leaders, and so many more aspects of our lives today have changed. Our laws (and the enforcement of the laws) must reflect that.

Especially when the pandemic brings with it discussions of lessening accommodations in schools (it can’t under the Individuals with Disabilities Education Act, Rehab Act, and ADA–but it can evolve to create different “reasonable” accommodations under the ADA in pandemic times). Especially when marriage equality is not a concrete right for people with disabilities who rely on government benefits for healthcare and financial assistance (there may be legal options depending on the person, but in a wide variety of cases people with disabilities can lose vital benefits if they’re married and their spouse makes more than $2,000 a month–another reason why the lawyer you choose is so important. They may be able to use certain trusts for this not to be an issue). Especially when employers are still discriminating against people with disabilities in interviews and workplaces. Especially when police are still using excessive force and wrongfully arresting people with disabilities because they misunderstand disability symptoms and instead see those symptoms as evidence of criminal behavior or motives. Especially when prosecutors are still uneducated on interviewing people with disabilities (a community more likely to be attacked by violent or economic criminals). Especially when prosecutors are more likely to not bring cases against criminals who target people with disabilities because they see a person with a disability as an “unreliable witness.” Especially when juries are still susceptible to imposing their disability biases when deciding the fate of a defendant with a disability.

Celebrate the ADA. It was, and still is, a monumental law. But it shouldn’t be the be-all-end-all-law for communities that continue to evolve. Disability discrimination still happens every day. We can and must do better.

People with disabilities have proven over the years that they can achieve great academic and vocational success. With the rapid increase in disability diagnoses, and the extension of academic resources and accommodations, students with disabilities are able to demonstrate their vast knowledge and abilities. As such, our world is filled with high-achieving professionals with disabilities.

Unfortunately, professional systems haven’t caught up with the times. Law students with disabilities face more discrimination than most professionals, because part of becoming a lawyer is passing the bar exam, and part of that process is passing the character and fitness portion. Law students are forced to disclose disabilities (mental and physical) and at times medical records, to prove to strangers on the character and fitness evaluation team that they are of good moral character to represent others. By requiring this information, the Bar is assuming that disability is a negative thing–something that students must attest to while proving that “despite their disabilities they can be great lawyers.”

But why does the Bar take that approach? You see, if any person would be a great lawyer, of good character, it would be a person with a disability. People with disabilities face challenges on a daily basis. They are forced for long periods of their lives to adapt to hurdles thrown their way, and compensate for their differences. They understand the ups and downs their clients face–because they have thrived in the face of stigma and discrimination–and they have succeeded in achieving their goals. They have become accustomed to the unpredictability and are quick to problem solve. People with disabilities are persistent and resilient by nature, and have worked incredibly hard to be respected in schools and the workplace.

But the issue of passing the character and fitness evaluation is terrifying law students with disabilities everywhere. Because the thing is, you pay hundreds of thousands of dollars by the time you have finished your legal education, you work hard to ace your exams, you walk across that stage at graduation, and then months later, the state bar decides if you are of good character despite your disability. This is on its face, discriminatory.

A law student at my law school (though at a different campus) is taking a monumental step in suing the Florida Bar based on its issues with his mental disability. This is a veteran, who served our country by working with explosives, who our country deemed was of good enough character to defend our freedom. Yes, like many veterans he came back from a deployment with a mental illness. He dealt with life or death situations while deployed and it’s reasonable that someone in that vocation would return with mental illness. Complicating matters further, he was going through a divorce–known as one of the most mentally straining processes for anyone. Also like many veterans and others dealing with especially stressful and personal life issues, he coped for a period of time by drinking too much.

This student did the right thing by asking for and receiving help when he needed it. He received treatment for adjustment disorder and substance use disorder from the VA medical center. He has been actively going to therapy and maintaining his mental and physical health consistently for a long period of time.

So, in return for asking for help and consistently treating his understandable mental health concerns, when this veteran tried to find a different career serving this country in an alternative way (serving citizens with legal needs), the Florida bar creates a fury of discrimination armed with stigmatic attitudes. They want him to pay thousands of dollars to provide even more medical documentation than he already submitted, and have him

This is an issue that needs to be resolved, and quick. Because the ADA and other related laws dictate that people cannot be discriminated against because of their disability. Disability is a protected class, a class of people who have been historically and systematically discriminated against. For that reason, to right the historical wrongs, the ADA and IDEA and the Rehab Act all were created to dismantle this wrongful discrimination. Yet, the ABA and state bar’s haven’t followed suit.

They have, however, tried to shield themselves from an ADA violation by “encouraging” state licensing boards to focus on the behavior of the law student instead of their diagnosis specifically. However, it is frequent that behaviors can be explained by a specific diagnosis. Without explaining the diagnosis, behaviors can seem confusing to a licensing board. Notably, these licensing boards have infrequent experience with people with disabilities.

Law students with disabilities not only have to prove and substantiate their diagnoses to their law schools to receive reasonable accommodations, they have to do the same for the MPRE, the bar exam, and the character and fitness evaluation. In this sense, they have the cards stacked against them. They remove card by card, proving their character and persistence again and again, in hopes that when they graduate they have a seat at the table. But often, the people who evaluate students with disabilities are hired to evaluate them against their peers without disabilities. They say, “clearly if this student got As in law school, they don’t need accommodations on the MPRE/bar exam because even though this student received appropriate accommodations in law school, compared to the average Joe they still would’ve passed.” The purpose of accommodations is not to pass or beat the average Joe. The purpose of accommodations is that the student can showcase their knowledge in a way that others without disabilities can see.

In this way, students with disabilities are being academically handcuffed by the very institutions that could benefit from their being accepted. Lawyers with disabilities have the unique capability of empathizing with clients, lawyers, judges, etc. They have had to advocate for themselves and their peers repeatedly throughout their lives, and as lawyers advocate and are active participants in legal organizations.

People with disabilities live life differently–they don’t live life incorrectly. For the state bar, the ABA, the MPRE evaluation committee, and law schools to assume that based on past challenges that were addressed by correct treatment, an individual is not of good character is discriminatory on its face.

Disability is one part of a person, it is not the whole person. To not allow a student with a disability to become a lawyer after he addressed and treated his disability is just plain wrong. Who can better serve clients going through hell, than a lawyer who went through hell and came out on the other side?

If the people evaluating individuals with disabilities for the character and fitness see a disability (mental or physical) as guilty of bad character, and make the student prove otherwise, the evaluators are not go good character themselves.

We need to encourage, accept, and support law students with disabilities. However, to historical legal systems apparently that is too much to ask. So at a minimum–just don’t discriminate.

Additionally, this level of discrimination discourages treatment. If you seek help for mental illness, you could be denied your dream career–so you don’t get help. Lawyers are known for heavy drinking and substance abuse. It’s a massive problem in the profession, so much so that law schools are talking with law students about it at their orientations. In fact, if many lawyers practicing in the field for years had to be once again evaluated for their character and fitness, they would fail. In this sense, the ABA and the state bar are not encouraging present or prospective attorneys to seek treatment out of fear of losing a career they worked so hard to obtain. They are also denying respect and fair treatment to students with disabilities, most of which are young and haven’t had decades to prove their stability, but have this used against them that they haven’t been managing their condition long enough for the bar to determine them to be of “good character despite their disabilities.”

It’s time for change in the legal profession, despite the system kicking and screaming in an outdated protest.

To read more about the case referenced above and the ABA recommendations:

http://www.abajournal.com/news/article/ada_lawsuit_about_florida_bar_examiners_mental_health_requirements/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

http://www.abajournal.com/news/article/house_urges_bar_licensing_groups_to_tread_carefully_when_asking_about_menta

Legally Abled

The ADA: We’ve Got a Long Way to Go

Law Students with Disabilities: disability and character and fitness