Commentary
Activists, Lawyers an Essential Team in Reform
Movement
By Mike Ervin
Lawyers and activists working together using litigation
always have been crucial in advancing the cause of disability rights. 
This was illustrated again last fall. California Governor
Arnold Schwarzenegger has been hell-bent on making drastic cuts in the
state’s In-Home Support Services (IHSS) program. Under the budget approved
in July, more than 120,000 people with disabilities would have had the vital
in-home assistance they receive through the program cut off or significantly
reduced. Street activists fought back in the manner they know best: They
protested. They sat outside Schwarzenegger’s office until they were hauled
away by security. They did what they could to draw media attention to the
injustice.
But it took a lawsuit to stop the cuts from being
implemented. On October 19th, U.S. District Court Judge Claudia Wilken enjoined
the state from eliminating or reducing anyone’s IHSS support until a
lawsuit challenging the cuts could be heard. The suit was filed by Disability
Rights California (DRC), the California protection and advocacy agency, on
behalf of five plaintiffs who are IHSS recipients.
Last summer, David Oster of Torrance, Calif., who has
autism and is bipolar, was scared to death that he would lose his IHSS support.
Through IHSS, his aide, Juila, assists him up to 63 hours a week with tasks
such as housework, food preparation and taking medication.
“Julia’s like second family,” Oster said.
“Before I received services, my apartment was out of place. I was
completely off.” He said Schwarzenegger’s budget cuts would eliminate
him from IHSS. “I heard about the cuts and I had a nervous breakdown. I
had to go into the mental hospital.”
So he contacted DRC for help. Before he knew it, he was a
plaintiff in a class-action lawsuit, V.L. v. Wagner, that challenged the cuts.
Outside the courthouse before the hearing at which Wilken issued her
injunction, about 100 people rallied in their slickers in a drizzle. Oster
stood on a wooden bench and addressed them with a bullhorn. “I said my
name is David Oster. I’m a name plaintiff. I said I live independently. I
said I didn’t want to go back into the mental hospital, so please
don’t cut IHSS."
For me, this brought to mind the protracted but successful
battle for public transit access some of us waged in the courts and the streets
of Chicago in the 1980s. At the time, there wasn’t a single lift-equipped
main-line bus in Chicago.
Some of us formed a chapter of Americans Disabled for
Attendant Programs Today to demand that the Chicago Transit Authority (CTA)
order only accessible buses. We blocked a downtown intersection and were
arrested. We disrupted CTA board meetings with noisemakers and bullhorns. But,
ultimately, it was a court decision that forced the CTA to surrender. Street
activists with bullhorns and T-shirts successfully collaborated with lawyers
with their business suits and briefcases. But it wasn’t a partnership
without tension and doubt.
The 1980s lawsuit, Jones v. CTA, was initiated by
the Chicago Lawyers' Committee for Civil Rights Under Law. Jeff Gilbert was an
attorney at a Chicago law firm but had little experience in disability civil
rights cases. He specializes in securities law.
“When I first got involved, I expected to win for my
clients because that is what I do," Gilbert said. "I had no appreciation for
the enormity of the challenge. I did not fully appreciate the time and resource
commitment the case would require.” The Jones case was filed in 1983 but
not settled until 1988. The trial lasted 10 weeks.
During that five-year period, we in ADAPT kept pursuing
our access demands on the streets. We didn’t trust the courts. We had
every confidence in the righteousness of our cause and the excellence of our
lawyers. But judges are fickle beasts, as susceptible to cultural and political
prejudices as everyone else. You can do everything right in court and still
lose.
We hit the streets even though our lawyers counseled
against it. Gilbert worried that our theatrics would undermine the lawsuit.
“I want to litigate the case in the court rather than in the media," he
said. "My general view is that you lose control when your message is translated
through a third party. You also run the risk of prejudicing the court or judge
against you. And I thought that aggressive protests could further polarize the
two sides and make it harder to resolve things if settlement became an
option.”
Rachel Scherer, a DRC attorney who has worked closely with
Oster on the Wagner case, said attorneys and plaintiffs alike were in favor of
the rally outside the courthouse.
“I think it’s inspiring," Scherer said. "People
showed up because it was so important to them to prevail. They wanted to offer
support for the attorneys, for the plaintiffs, for people they love and care
about. It makes everyone realize all the people that are impacted. It makes it
real and personal, and it fires you up a little as you go into the
courtroom.”
But wasn’t there a risk that the judge might feel
unduly pressured and thus resentful? “Maybe in certain
circumstances,” Scherer said. “But in this case, having persons with
disabilities have a voice in all this was outweighed by any harm it could have
done. There’s no point in silencing that.”
Dara Shur, DRC’s director of litigation, said it is
also important for plaintiffs and their lawyers to assess how drawing media
attention to a case may influence the resolution of the issue the case
addresses outside the courts.
"We have a full-time communications director," Shur said.
"We work closely with our allies and clients to determine when and how it is
important for the public to know about our litigation. Because of its broad and
serious impact, this case has received a lot of media attention. We are hopeful
this will help educate legislators when new budget cuts are discussed in this
coming year.”
In the Jones case, lawyers and plaintiffs agreed to let
each other do their thing. When our lawyers needed a show of solidarity, we sat
in the courtroom gallery and behaved. When we testified, we washed up and
dressed up. But we continued to harass the members of the CTA board who refused
to submit to our demands. When a judge ruled in our favor on Martin Luther King
Jr. Day in 1988, it was front-page local news.
What does Gilbert think lawyers and activists can learn
about working together from the Jones case?
“I think we formed a good team because we all were
willing to listen to each other. We also respected each other. We tried to
understand each other's perspectives and what we needed from each other in
order to accomplish the shared goal of access to main-line transit.”
Personally, I still don’t trust the courts as the
sole forum for grievance. I believe now as I did then in piling it on, in
applying pressure on any front that might lead to success. But quite often the
courts are one of these fronts. The best way to ensure that the disability
community wins genuine victories in court is for lawyers to closely collaborate
with activists who are the most seriously affected by the outcomes of the
cases.
Mike Ervin is a writer and member of ADAPT, a group
that works for the civil rights of people with disabilities. |
