Academic journal article Texas Journal on Civil Liberties & Civil Rights

Jacobus Tenbroek Law Symposium Keynote Address

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Jacobus Tenbroek Law Symposium Keynote Address

Article excerpt

Robert Bork said, '"You can't legislate morality.' Indeed . . . we legislate little else."1

John Adams said, "In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress."2

These reflections indicate that the law is controversial, and its place within society is equally controversial. Perhaps as much has been written about the nature of justice as almost any other topic.

Many authorities believe that the law sets forth the synthesized standard of minimum behavior acceptable among human beings.3 One of the functions of law is to classify people and property. The improper classification of human beings is known as discrimination,4 which when described in these terms looks so innocent, so non-confrontational.

What is the value of a human being? How is the value of one human being to be compared with the value of another? These questions have been addressed by the legal systems through the millennia. They are at the heart of the question of discrimination and integration.

In the Code of Hammurabi, one of the world's oldest legal codes, disability is not mentioned, but the code does declare that, "If [a man] put out the eye of a man's slave ... he shall pay one-half of its value."5 A slave without two eyes does still have value, perhaps half the value that the slave had before being injured. A slave was worthy of classification in the Code, but disabled people were not of sufficient importance to be given a place in the statutes.

In 1966, Dr. Jacobus tenBroek, a blind lawyer and constitutional scholar who founded the National Federation of the Blind in 1940, published an article in the California Law Review entitled, "The Right to Live in the World: The Disabled in the Law of Torts."6 In this article, Dr. tenBroek espouses the fundamental proposition that the disabled possess the same right to live in the world as all other human beings and that this right is necessary to the principle of equality, also shared by the disabled.7 After stating this essential proposition, Dr. tenBroek says that the policy of the United States is that the disabled have protection equivalent to all others under the law to live, work, and otherwise enjoy the rights of participation in the community with all others.8 He observes, however, that the courts have frequently interpreted the law to abrogate or at least to limit severely this policy.9 His conclusion is that the courts do not oppose the policy of integration for the disabled. Rather, he believes that the courts do not know this policy exists. Dr. tenBroek states that in some cases the possession of a disability has been regarded as evidence of contributory negligence10 or assumption of the risk that may be considered by a jury.11 Although disabled people have a right to be in the world, the risk of injury while exploring that world falls on disabled people, who should know better than to be in such a dangerous place. The driver who runs over a blind person might argue that if the blind person could have seen the car coming, the blind person would not have stepped into its path. Consequently, it is the blind person's fault for being there at all.

Dr. tenBroek points out that the right to be abroad in the land is no right at all unless the interpretations of the doctrines of law take into account the realities of disability.12 Thus, the law should take notice that the blind cannot see (or see very well), that the deaf cannot hear (or hear very well), and that wheelchair users cannot walk (or walk very well). To say that wheelchair users have equal access to public buildings but that the only way into them is up a flight of stairs is to confront the disabled with an ironic proposition. This reminds me of the position taken by the U.S. State Department before 1990.13 The State Department said that all applicants for employment were given equal consideration.14 All were expected to take and pass an entrance examination. …

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