Monday, December 14, 2009

David vs. Goliath: Even New Lawyers Can Change the World

Everyone has a different reason for going to law school. Many see it as a generalist degree on the way to a career in business, journalism, writing, or teaching. Others are lured by the prospect of prestige, wealth, or at least job security. Then there's always that small subset of lawyers who go into the practice because they want to have a lasting impact on the world. They imagine themselves championing for the rights of the downtrodden and using the courtroom as a venue to right the wrongs of others.

Many lawyers attempt to accomplish this last objective by accepting lots of pro-bono cases and arguing for one lost victim of the legal system at a time. The world needs more dedicated lawyers who accept these cases. But individual justice is a hard way to make a difference, and the root causes of our clients' problems--poverty, family circumstances, addictions, and poor health, often don't go away just because we solved their immediate legal needs.

The great civil rights lawyers of the 1950s and 1960s had the sort of cases that we can only dream of winning today. Their eloquence led to opinions such as Brown vs. Board of Education, a single case that smashed through the barriers of institutionalized racial segregation and changed the way a nation treated millions of its own citizens. As modern lawyers, we study their struggles and admire how their seemingly small cases could affect so many. But is it still possible to find such cases, or have the most important civil rights battles already been decided?

No, there are still plenty of good fights left. However, the new frontier of discrimination has shifted from obvious and blatant acts of racial hatred to more subtle acts of omission in areas such as disabilities accommodation. For the last nine years, I have been involved in such a case, and I'm proud to have played a role in litigation that will ultimately make a difference to thousands of disabled citizens in the South.

Identifying the discrimination.

The case started innocently enough at McNeese State University, a public university of more than 8,000 students in South Louisiana. Only a few months after I started practicing law, an old friend who attended McNeese in a wheelchair called seeking legal help. She had recently been forced to urinate on herself and injured her arm in a McNeese restroom which didn't meet accessibility guidelines for the disabled, even when it was built back in 1967. She only wanted help recovering her expenses and lost time from school, and it didn't sound like a complicated case.

Incidentally, she mentioned that she had a lot of trouble on campus due to a lack of accessible restrooms, doorways, ramps, sidewalks, elevators, etc., that she had been treated poorly by the college administration when she complained, and that she had been forced to drop most of her classes each semester for the last five years because she so often could not get to them. She went on to tell me about other students in wheelchairs who had simply given up on their dreams of a college education because of the many accessibility problems at McNeese. I listened to her and promised to examine these problems as well.

Since I knew the president of McNeese, I expected us to be able to clear up the compliance issues and get accommodations for her with a simple letter and a few phone calls. That simple request evolved into litigation which has persisted for nearly a decade and counting.

McNeese fights change.

Unfortunately, McNeese took the position that it did not have to accommodate students in wheelchairs and dismissed my client's accommodation requests by telling her that she simply shouldn't attend college if she had trouble fitting her wheelchair into restroom doors. A string of opposing counsel who worked for the State (all of whom are personally very nice) didn't realize that these statements alone, much less the condition of the campus, constituted discrimination. Indeed, one of my opposing counsel even advised me (politely but with great conviction) that I couldn't possibly sue for discrimination, because he had discovered that my client, "isn't even black."

That steadfast position didn't change for years as the litigation climbed its way through the Louisiana judicial system (we filed in State court, and McNeese never removed). As we diligently researched the law and saved our pennies to hire experts, McNeese was taking a different approach. They began planting vehicles outside of my client's house so that investigators could spy on she and her 15-year-old daughter.

Ostensibly, McNeese's attorneys were trying to show that this lifelong epileptic who urinates into a catheter and has a bum knee and neurological problems had managed to fool her physicians into performing unnecessary surgeries on her so that she could fake her disabilities. It was a ridiculous position, but they seemed to believe that if they waited outside her house long enough with a video camera, they would catch her doing back flips in her front yard.

Interestingly, despite spending public money on this spy endeavor, McNeese never even bothered to depose her urologist or the physician who had prescribed her wheelchair and never even requested an independent medical examination as to her orthopedic, neurological, or urinary problems. Moreover, the spies didn't even try to conceal themselves, and my client, a single disabled mother, was always aware of and terrified by their presence. It seemed to us as if the spies were hired to intimidate her rather than provide any evidence.

Meanwhile, McNeese's ADA director testified at his deposition that he had personally been aware of my client's disabilities and remembers her making requests for accommodation long before her accident. Yet he still wanted more proof (more than the hundreds of pages of medical records already supplied) that she really needed her wheelchair. He even suggested, without much explanation, that part of his job is making sure that those in wheelchairs aren't purchasing their wheelchairs at "pawnshops" and faking their disabilities. McNeese's ADA director further admitted that McNeese historically deterred about 75 percent of its prospective disabled students from attending McNeese and that his office could not provide accommodations for physical disabilities (however, it could provide accommodations for academic disabilities, which my client did not need).

The legal and economic arguments.

The ADA requires that every "service, program, or activity" at a public university be made "readily accessible and usable" to the disabled. Thus, if someone shows up at a public university in a wheelchair, she should immediately be able to use the restrooms and other parts of the campus without too much red tape or unnecessary drama. The easiest way to make every "service, program, or activity" readily accessible and usable to someone in a wheelchair is to make often modest physical upgrades to the campus. This might involve making a toilet stall wider or replacing a narrow door with a wider one.

In our case, McNeese had estimated that it would only have cost about $4,000 to upgrade every restroom in the student union. This isn't much money to a school that receives $75 million per year from the state and had additional methods of raising money, from tuition assessments to parking fines. Furthermore, McNeese was one of the lucky schools located in a town with a casino that provided it with approximately $2 million per year in bonus discretionary funds. Indeed, McNeese's budget documents demonstrated that it was flush with cash and routinely spent hundreds of thousands of dollars on campus beautification projects, such as a $300,000 life size statute of a cowboy riding a horse. Despite having more than adequate resources to do so, McNeese refused to upgrade any of its restrooms out of principle.

Instead, McNeese argued that every student, prospective student, visitor, guest, friend, family member, or transient who appears on its campus has a duty to carry their medical records with them, bring them to McNeese's ADA coordinator, and "register" themselves as disabled, to the satisfaction of the ADA coordinator. Of course, the ADA coordinator admitted that his office was located in an inaccessible building that the disabled often couldn't reach. And even if the disabled were able to make this trek, the ADA coordinator admitted that it was not his responsibility to do anything for them. Indeed, one of the strangest moments of the case occurred when the ADA coordinator said that he was unable to investigate my client's accident because, after six years on McNeese's payroll, he did not know where the student union was located (hint: it was about 100 feet from his inaccessible office). Yet, because of the mere presence of this coordinator, McNeese argued that it had satisfied its obligations to the disabled.

The most dramatic testimony in the case occurred when the president of the university admitted in his video deposition that he did not consider it "fundamentally important" for the disabled to have access to certain buildings (such as the student union and cafeteria) on his campus and, therefore, he did not regard it as a "high priority" for the disabled to get into those buildings. If you transpose the word "disabled" with the word "black", "Catholic", "Jewish", "foreign", or any other term of race or religion, you get an idea of how offensive that is. Would you allow your client to testify that it's not "fundamentally important" for black students to be able to access a campus cafeteria?

Essentially, the other side admitted everything that we needed to prevail on summary judgment and establish that my client had been discriminated against. We filed for summary judgment, attaching hundreds of pages of exhibits. McNeese continued the hearing for nearly a year.

Landmark summary judgment.

When we finally had our day in court, we presented a Powerpoint explaining the law and showing video clips of the McNeese president testifying that it was not "fundamentally important" or a "high priority" for the disabled to access his campus. The trial judge, himself a McNeese alumnus, responded by stating on the record that he knew the president of McNeese and considered him to be a "good" president. The judge's own daughter worked for McNeese. He delayed ruling on our summary judgment three times and stated in open court each time that he wanted McNeese to come back with additional evidence so that he could deny our summary judgment. But there wasn't much that McNeese could say, and on the third hearing, the trial court reluctantly granted our summary judgment.

McNeese filed a contentious appeal, in which it twice tried to strike our arguments as being "discourteous". The appellate court carefully considered the law and issued the longest civil opinion of the year. The opinion was as strongly worded as it was long. Some of the highlights include:

We cannot fathom that McNeese felt no need, regardless of whether it was required by law, to upgrade a single women's restroom into ADA compliance in a building that houses, inter alia, the two main student cafeterias on campus, offices for student government and activities, and a state-of-the-art computer laboratory. McNeese's decision to ignore a federal mandate is reminiscent of the intolerance of the past. We had hoped that the days where a court has to step in to ensure that people were treated equally under the laws of this country were gone. Yet, still, McNeese is emboldened enough to bring such a case to an appellate court where a published, written opinion will forever memorialize its discrimination against this country's disabled citizens. It is hoped that McNeese will reassess its attitude toward its disabled students. It is also hoped that McNeese will prepare and publish a transition plan as required by the ADA. [emphasis added]. Covington v. McNeese State Univ., 996 So. 2d 667 (La.App. 3 Cir. 2008); rehearing denied, 2008 La. App. LEXIS 1688 (La.App. 3 Cir. Dec. 10, 2008); writ denied.

Furthermore, the appellate panel referred to McNeese's arguments as “frivolous”, a “concoction”, “completely irrational”, “indefensible”, having “audacity”, and “absurd”. I'm proud of these judges for saying what needed to be said, and I will always be grateful to them for their courage in speaking up against a powerful and beloved local institution (and the only public four-year university in Louisiana for 70 miles).

After this opinion was published, McNeese moved for rehearing and appealed to the Louisiana Supreme Court, which unanimously upheld the appellate court. Around this time, the U.S. Department of Justice Civil Rights Division launched its own investigation of McNeese, adding further pressure to an institution that ran out of defenses for its actions years ago.

How did McNeese allow itself to get into such a bind? I think it did several things wrong. First, those advising McNeese relied on their considerable experience and confidence as litigators. But they were not familiar with the ADA, which didn't even exist when most of them became lawyers. The attorneys simply couldn't believe that a solo-practitioner right out of law school knew something that they didn't.

Second, McNeese always regarded itself as above the law, and its attorneys and even members of the public frequently warned me that I would never be able to convince a judge or jury to rule against McNeese. Moreover, if I did, it wouldn't stand up on appeal. McNeese didn't count on having objective judges who were unmoved by tales of the school's baseball and football exploits. But these judges were fair and courageous, and their words will make a difference to thousands of disabled students for generations to come.

Finally, the McNeese officials probably never considered themselves to be discriminators, because they erroneously believed that discrimination always has to be an affirmative act and failed to realize that statutes such as the ADA impose affirmative duties on them. In other words, it was easy for McNeese officials to blame "that door" or "those stairs" for keeping the disabled from receiving an education, but they never realized that they were responsible for making "that door" wider. And when they finally admitted (after nine years) that they did have obligations, they immediately started blaming someone else (such as the State) for not fixing their problems for them. This probably made it easier for McNeese to rationalize its actions and take a hard-line approach to this case and unyieldingly fight to the bitter end.

Current status of the case.

I wish I could say that the case was completely over, but we're at year nine and counting. The U.S. Department of Justice Civil Rights Division has launched its own investigation of McNeese, and I have six motions to compel and a motion for injunctive relief pending. The injunction is being sought to put McNeese under a court order to bring certain buildings into compliance with the ADA. These hearings were supposed to heard in October, but the State of Louisiana Criminal Division of the Attorney General's Office (which has nothing to do with our case) intervened 48 hours before the hearing and filed a motion to recuse the trial judge (the McNeese alumnus whose daughter worked for McNeese).

McNeese now argues that this judge, whose opinions against McNeese were broadened by a unanimous appellate court and Supreme Court, cannot be objective towards McNeese. Why? Because the judge ostensibly has a poor relationship with the Criminal Division of the Attorney General's Office and made comments about that office two years earlier in an unrelated criminal case. You couldn't ask for much more logic than that.

But even while the State continues to play procedural games, there is some good news. McNeese has hired new counsel, who has represented to us that the State of Louisiana is evaluating 16 public universities for ADA compliance. Furthermore, the State admits that it is now aware of another 10,000 buildings that it should (that's the key word) evaluate for compliance. I have been told that the Louisiana Legislature has allocated tens of millions of dollars in emergency funds to ADA compliance as a result of this case, although I haven't yet seen the proof.

Most importantly, there is now a strong precedent set in State court to allow additional suits to be filed by other disabled students. And, while my client has lost nine years of her life, she no longer cries every day and no longer sees the dark suburban that used to camp outside her home and take her video. When she talks about her legacy, it will always include what she accomplished for herself and others in Covington vs. McNeese.

What lessons can a young lawyer learn from this experience? Never give up, because you can make a difference. You may find yourself litigating against much more experienced lawyers, and you may find yourself fighting an establishment with much more resources than you have. Don't let that deter you, because that's the only way that change ever occurs.

Don't forget that every big case starts as a small case. Rosa Parks' legal problem didn't start as landmark litigation; it started as a request for a bus seat. My client didn't come to me asking to change the way Louisiana treats its disabled; she came asking for a way to be able to get to her classes and not get hurt on campus. I never imagined that my first real client out of law school would land us in the Louisiana Supreme Court, would involve the U.S. Department of Justice, and could result in the State being compelled to spend millions of dollars to help its most vulnerable citizens. Most importantly, I never imagined that as a young lawyer, I would have the opportunity to fight a case that made a difference in the lives of people who need it the most.

If you're one of those people who went to law school to make a difference in the world, you'll get your chance. Just remember that the civil rights battle never ends; its borders just shift.

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  1. Reading this article, I originally thought it had been written back in 1993 or so, when the ADA rules were beginning to take effect. I was a member of the group who raised money to install the handicap entrance to the library back then.

    I was shocked to see the article was posted yesterday!

  2. Thank you for helping to raise the money for the library entrance, which is still being used today. Unfortunately, after an early and brief flurry of compliance activity in the early 1990s, not much changed on campus during the next 15-20 years.

    My understanding is that one of the fraternities got together with SOS, a disability group, to pay for that library entrance, and they held some sort of raffle? Would you mind if I asked you some questions about your familiarity with that entrance and its history? My email address is, and I would welcome the opportunity to speak with you.

    Seth Hopkins


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