Professor Ian Gallacher Launches The Legal Writers Toolkit
Professor Ian Gallacher believes the world needs good lawyers, and he wants them to be good legal writers too. To this end, he is developing The Legal Writer’s Toolkit for all current College of Law students and alumni, and he hopes it will eventually be available to prospective students as well.
According to Gallacher, writing is thinking: “You can’t write well unless you think well. It is important for lawyers to write well because it allows them to show the quality of their thinking.”
Hosted online, The Legal Writer’s Toolkit will be organized by writing topic with both video and non-video-based content. Gallacher says he hopes the toolkit will help legal writers at any point in the writing process. “When they encounter problems, they can start here,” he says.
The traditional model for legal writing assistance at law schools has been the writing center, notes Gallacher, which is typically a faculty-led, student-staffed physical space. In a writing center, support happens in person when a student has an assignment due. After making an appointment, the student will get general help on their assignment through peer-to-peer counseling.
“A writing center model is a fine one,” Gallacher observes, “but it’s an expensive option and would be difficult to manage in a future that includes COVID-19 social distancing.” So at a time when centers of learning and student support are transitioning online, The College of Law is well-positioned to adapt its writing assistance rapidly to this change. Gallacher says the project was conceived before the COVID-19 crisis occurred, but that it’s certainly timely.
Gallacher notes one complication of COVID-19 closures, however: “My plan was to use the campus video production facilities to record a lot of this content, but I suspect this will be happening in my basement now.”
As of June 2020, initial non-video content for the toolkit—a reading list—is complete and available to incoming students. Gallacher asked several faculty—including Dean Boise and Vice Dean Keith Bybee—to select books they thought incoming students should read before law school, and he encouraged Bybee to select his own book, How Civility Works.
Focus questions accompany each title to help students understand the texts and “move their reading approach to the more active style required in law school, where students need to ask questions of the texts they’re reading in order to get the most out of them,” Gallacher explains.
If students complete the entire reading list, they will have a tremendous advantage in their first year of study, Gallacher says, with subjects ranging from negotiation techniques to technology’s impact on the law. The first iteration of the complete toolkit will be available this fall, with plans for the site “to grow as quickly as I can add material,” he says.
“It is important for lawyers to write well because it allows them to show the quality of their thinking.”
Gallacher joined the College of Law faculty in 2004 to lead the Legal Communication and Research (LCR) program. “Syracuse has a very liberal and engaged approach to legal writing education, which made joining the faculty extremely appealing,” Gallacher says.
Gallacher explains that Daan Braveman—College of Law Dean from 1994 to 2002—wrote in the December 1989 Journal of Legal Education about the importance of doctrinal professors teaching legal writing, a program he named Law Firm. “Daan’s article was groundbreaking,” says Gallacher. “It was one of the first signs that doctrinal faculty were alive to the importance of legal writing as part of the first-year curriculum. That made Syracuse a very exciting place for someone dedicated to the teaching of legal writing and for research to come.”
Professor Richard Risman came to Syracuse in 1998 and directed the Law Firm program until 2002. That was at that time legal writing was becoming a discipline in its own right, so Risman decided to teach more and the College made his position a tenured appointment, which was rare.
“The LCR program evolved from the idea of doctrinal teachers teaching writing as part of their courses. They came to learn that teaching legal writing is really hard, so once there were enough people identified as legal writing educators, LCR was possible,” Gallacher recalls.
Now at 63 years old, Gallacher has decided to try something new with The Legal Writer’s Toolkit, and Professor Aliza Milner has been named the new LCR Director. Teaching at Syracuse since 2006, Milner is described by Gallacher as “incredibly experienced and fabulous. She will take LCR and drive it into the future.”
With a stable writing faculty core and a continuing desire to create better legal writers, Gallacher—who in 2018 was awarded the Thomas F. Blackwell Memorial Award for Outstanding Achievement in the Field of Legal Writing by the Legal Writing Institute and the Association of Legal Writing Directors—sees The Legal Writer’s Toolkit as a natural next step for the College.
“Syracuse is a place where we care about people. I obviously care about Syracuse students the most, but I also care about anyone who wants to be a better legal writer,” Gallacher says.
In April 2020, the College welcomed five new professors who continue to broaden the College’s academic and research capacity in key strength areas and who expand the bench of highly experienced legal scholars teaching in JDinteractive.
“The teaching, practice, and research interests of these new faculty members will be critical to guiding our students toward academic and career success,” says Dean Boise. “I’m particularly pleased to have hired two professors—Jack Graves and Linda Whitton—who will focus their teaching within JDinteractive. Both are recognized scholars in their fields and—as online pioneers—they are profoundly dedicated to providing quality online legal education for the 21st century.”
Meet the New Professors
Courtney Abbott Hill L’09
Most recently Associate Director of Student Affairs, Courtney Abbott Hill L’09 joins the faculty as a teaching professor of legal writing. In the Office of Student Affairs, she was responsible for helping students reach their full academic potential with an emphasis on bar exam preparation. She also designed and implemented academic success programming, and she taught a third-year law seminar.
Abbott Hill earned her J.D. magna cum laude from the College in 2009, where she was Managing Editor of the Syracuse Law Review and a member of the Justinian Honor Society and the Order of the Coif. After graduation, she served as a court attorney with the New York State Appellate Division, Fourth Department, before transitioning to a career focused on law student success as a regional director with a national bar review provider.
Why did you decide to teach law? I love working with students! I spent time teaching before law school and decided early in my law career to pivot toward helping law students achieve their full potential.
What is the most important aspect of the law that students should know? When reading the facts and circumstances of the cases you are assigned in law school, remember that the people involved are not fictional. Consider this human element rather than simply looking for the rules established by the cases. Not only will that help you read and think critically, it will help you become a better lawyer.
What interests do you have outside of teaching and the law? I have two young children, so when I’m not working you can usually find me cheering on a Little League team, watching a dance recital, or volunteering at their school.
Jack Graves
Jack Graves joins the College as a teaching professor and will develop and teach JDinteractive courses in commercial transactions and evidence. A visiting professor at the College in 2005, Graves was most recently at Touro Law Center, where he served as Professor of Law and Director of Digital Legal Education, launching its hybrid J.D. program.
A law graduate of the University of Colorado (1994), Graves has played a significant role developing online legal education in J.D. programs nationwide. His recent writing focuses on teaching materials tailored to the online environment, including Sales Law (2020), Learning Contracts (2019), and International Sales and Commercial Arbitration (2017).
Graves was an original member of the Working Group on Distance Learning in Legal Education. He developed and delivered two fully asynchronous courses through iLaw Distance Learning, and he serves as a frequent speaker at online legal education conferences, including Syracuse’s April 2019 symposium on “Online Learning and the Future of Legal Education.”
Why did you decide to teach law? I thoroughly enjoyed the law school experience and environment as a student, and I found the opportunity to return to that environment as a faculty member to be irresistible. Although I loved practicing law, I found the most rewarding aspects of my job to be attorney development and associate training.
What is the most important aspect of the law that students should know? Reading and applying statutes is one of the least developed skills for law students and lawyers. While there is much to be said for the common law, we often become so immersed in case methodology that law students (and lawyers) can easily overlook the value and importance of direct statutory interpretation.
What interests do you have outside of teaching and the law? I love outdoor sports, including cycling, skiing, climbing, kayaking, and other adrenaline-inducing activities. Adding twins to our family a few years ago slowed me down a bit, but as they get older, I am returning to the outdoors.
Mark P. Nevitt
An expert on the intersection of national security and climate change, Mark Nevitt will teach national security law, climate change law and policy, environmental law, and constitutional law.
A contributor to the Just Security blog and Penn Law’s Regulatory Review, Nevitt has published widely on climate change, environmental law, and national security law in the Harvard Environmental Law Review, Washington University Law Review, Boston College Law Review, and elsewhere. His chapter on “Environmental Law in Military Operations” is included in the influential operational law analysis US Military Operations: Law, Policy, and Practice (Oxford, 2016).
Nevitt has served as the Distinguished Professor of Leadership and Law at the US Naval Academy in Annapolis, MD, and Sharswood Fellow, Lecturer-in-Law, at the University of Pennsylvania Law School. Before his academic career, he was a tactical jet aviator and a Judge Advocate General’s Corps attorney in the US Navy. As a legal advisor, he helped with the US Navy’s investigation into the Iranian detention of sailors on Farsi Island in 2016. His military awards include the Air Medal and Meritorious Service Medal (four awards).
Why did you decide to teach law? First, I view teaching law as a continuation of my public service that began when I was 18 years old and joined Navy ROTC at the University of Pennsylvania. Second, I love legal research, scholarship, and going deep on issues that are not just theoretically interesting but that are grounded in real-world practice and that require innovative legal solutions.
What is the most important aspect of the law that students should know? Be inquisitive, never stop learning, and keep an open mind about where your Syracuse law degree may take you. I’m a case study. I started out as a military attorney with a variety of assignments throughout the world, and each exposed me to a new and interesting aspect of the law.
What interests do you have outside of teaching and the law? My wife, Sara, and I love to cook, travel, read, and explore the environment. We are both environmentalists at heart, and we are looking forward to finding our new winter sport. Sara grew up in Upstate New York, so Syracuse is bit of a homecoming. At least once a year, I take a long bicycle ride in beautiful countryside. In 2019 that was Nova Scotia, and the year before that, the Green Mountains in Vermont.
Monica Todd
Monica Todd becomes a teaching professor of legal writing. Most recently, she was a legal writing professor at Western State College of Law in Southern California, and she served as a visiting professor at California Western School of Law in 2019-2020. She has taught courses in family law, community property, and academic support, and she served as Director of Western State’s Family Practice Certificate Program.
A specialist in family law practice and crossover social and legal issues related to family law and domestic violence, Todd has published research in Akron Law Review and Western State University Law Review.
Before her law career, Todd attended graduate school at the University of California at Irvine, completing both a master’s degree in social ecology (with an emphasis on Human Development Studies) and the Elementary Education Teaching Internship Program. She taught elementary school before earning her J.D. at the University of California at Los Angeles in 2007. At UCLA she was Bergstrom Child Welfare Law Fellow and Copyright Editor of the Women’s Law Journal. After law school, she practiced at Stegmeier & Gelbart LLP and the Law Office of John A. Bledsoe.
Why did you decide to teach law? Teaching law is the perfect blend of two very creative, important, and challenging professions. I taught elementary school for several years before becoming a lawyer. While being a lawyer was the fulfillment of a lifelong dream, I missed being in the classroom. I feel fortunate to have combined my two passions into a fulfilling career, and I am honored to have had a role in the development of many young lawyers over the years.
What is the most important aspect of the law that students should know? Words are everything. Subtle nuances in the written word and slight changes in punctuation can have a drastic impact on the meaning of legal rules and how they apply. It is crucial that students take time to not only understand the law but to learn how to use it to craft effective legal arguments. Words are power, and in harnessing this power, lawyers can change the world!
What interests do you have outside of teaching and the law? I enjoy gardening, camping, and spending time with my family. I am looking forward to learning about the flora and fauna of Upstate New York and to discovering new places of natural beauty.
Linda S. Whitton
Linda Whitton is Professor Emerita of Law at Valparaiso University Law School, where she held the Seegers Distinguished Professor Chair. Joining Syracuse as a lecturer, she will teach property law in JDinteractive. She is known nationally and internationally for her scholarship on durable powers and guardianship, and she is the Reporter for the Uniform Power of Attorney Act (2006) and the Uniform Recognition of Substitute Decision-Making Documents Act (2014).
Whitton is a retired Fellow of the American College of Trust and Estate Counsel, and she has served in numerous leadership positions within the ABA Section of Real Property, Trust, and Estate Law and the AALS Section of Aging and the Law.
A graduate of Valparaiso University Law School, before commencing her academic career, Whitton served as law clerk to the Hon. S. Hugh Dillin, United States District Court for the Southern District of Indiana, and practiced business and commercial real estate law.
Why did you decide to teach law?I enjoy the challenge of demystifying legal concepts and making them accessible to students and the public. Following the examples of my mentors, I want to inspire others to advocate for those who are unable to advocate for themselves.
What is the most important aspect of the law that students should know?The development of professional judgment. Studying the law is the vehicle through which professional judgment is honed, and it is the compass by which lawyers navigate change in laws and the circumstances in which laws are applied.
What interests do you have outside of teaching and the law? I am an avid kayaker and gardener, and I enjoy all types of design.
Rising 3L Sharon Otasowie received the Commandant of Cadets Award, presented as part of the 103rd Chancellor’s Review and Awards Ceremony to recognize the distinguished performance of cadets in the Army and Air Force Reserve Officers’ Training Corps (ROTC) programs. The Commandant of Cadets Award is “presented to a cadet in the top 25% of their Aerospace Studies class who demonstrates exceptional leadership, appearance, bearing, and character.”
Krastev and Marcellino Secure Best Ever Tax Challenge Result
Brian Krastev L’20 and Matthew Marcellino L’20 finished second out of more than 80 teams from around the country competing in the American Bar Association (ABA) Law Student Tax Challenge competition. This is the College of Law’s best result ever in this annual competition. Professor Robert Nassau, Director of the Low Income Taxpayer Clinic, coached the team.
An alternative to traditional moot court competitions, the Law Student Tax Challenge asks two-person teams of students to solve a cutting-edge and complex business problem that might arise in everyday tax practice. The team defended its solution before a panel of judges representing the country’s top tax practitioners and government officials, including tax court judges.
JDi Student Hosts ABA Law Student Division Podcast
MeghanStapletonSteenburgh, a rising 2L student in the JDinteractive program, was chosen as a host of the American Bar Association Law Student Division podcast for 2020. Throughout the year, Steenburgh has been contributing interview- style podcasts to the ABA’s series.
Among her interviews to date are conversations with Sen. Dan Sullivan of Alaska, and DeanBoise and Professor Nina Kohn. Boise and Kohn were interviewed in March 2020 about making legal education more accessible through online programs and other innovations, just before the COVID-19 pandemic forced the remainder of the spring 2020 semester to be conducted online. The two-part podcast also featured JDi 2Ls Mandy Mobley Li, Katy Morris, and Ernie Sawyer.
Students Join Professor Gouldin to Present on Bail Reform
Matt Taghavi L’20 and Katherine Brisson L’20 presented with Professor Lauryn Gouldin on bail reform as part of the Criminal Justice Educators Association of New York State Annual Conference. “Matt and Katherine did an excellent job comparing New York State’s new bail reform legislation with the new bail reform law in California,” says Gouldin.
Dowling Published Twice in NDNY Federal Court Bar Association Newsletter
While working as an extern at the Office of the Federal Public Defender of the Northern District of New York (NDNY), John J. Dowling III L’20 had two articles published in the bar association’s newsletter.
“US Supreme Court Cabins Sentencing Courts’ Deference to Sentencing Commission” was published in the fall newsletter, and “Circuit Split Deepens over Whether Inchoate Drug Crimes Trigger Career Offender Enhancement” ran in the spring 2020 newsletter.
Cohn Places Second in Student Writing Competition
Samuel Cohn L’20, a dual degree graduate with a master’s in the Newhouse School New Media Management program, won second place in the student writing competition for the Law and Policy Division of the Association of Educators in Journalism and Mass Communications.
Titled “‘Funding Secured:’ A Forty Million Dollar Tweet that Highlights First Amendment Issues Associated with Regulating Speech on Social Media,” Cohn’s paper examines the legal fight surrounding Tesla owner Elon Musk’s use of social media.
BLSA Hosts Conversation on People of Color in Legal Profession
Addressing the important topic of diversity in the law during Black History Month, the Black Law Students Association (BLSA) held “A Conversation About Being a Person of Color in the Legal Profession” in Dineen Hall on Feb. 20, 2020.
Moderated by Professor Paula C. Johnson, the panel included Alyssa Campbell, Director of Equal Opportunity and Employment, Syracuse University Office of Equal Opportunity, Inclusion, and Resolution Services; Melanie Cuevas-Rodriguez, Syracuse University Equal Opportunity and Title IX Investigator; and David L. Chaplin II L’13, Director of Employee Relations, Onondaga County.
College of Law Celebrates Diversity in Law and Society, Engages Community
In fall 2019, the College of Law community came together to learn from each other and celebrate the many ways diversity contributes to a vibrant Dineen Hall.
Thanks to Student Bar Association Diversity Chair rising 3L Ken Knight and his committee, events included “A Conversation with the Onondaga Nation”; an informational discussion with Barclay Damon on its Diversity Mentor Program; a “Diversity and the Law” professor panel; the William Herbert Johnson L’1903 bar admission ceremony; and a day of volunteering at the We Rise Above the Streets Sandwich Saturday in downtown Syracuse.
On February 28, the College of Law celebrated Diversity Law Day, in collaboration with the New York State Bar Association, the William Herbert Johnson Bar Association, Law School Admission Council, and the Syracuse Civics Initiative.
Students from Syracuse-area school districts visited Dineen Hall and met with College of Law faculty and students, as well as local practicing attorneys, who discussed the importance of diversity, inclusion, and representation in the law.
Among the activities, law students gave a presentation to the high school students about the famous espionage trial of Ethel and Julius Rosenberg during the Cold War, followed by a brief reenactment of the trial and small group work.
The students also heard from the Hon. Thérèse Wiley Dancks L’91, who spoke about her passionate interest in civics education. Later in the day, the high schoolers had the opportunity to ask law students about college, law school, and diversity during a panel discussion in the Melanie Gray Ceremonial Courtroom.
Mock Trial Provides Courtroom Experience for College of Law and Newhouse Students
Two Syracuse University professors have teamed up in an innovative cross-campus collaboration to allow future television reporters and lawyers to experience the drama of a high-profile murder trial. College of Law Professor Todd Berger and Professor Elliott Lewis of the S.I. Newhouse School of Public Communications convened their respective classes for the mock trial of People v. Mitchell, a fictional case involving the shooting death of a young woman.
In this cross-disciplinary class, law students played the roles of prosecutors and defense attorneys, questioning witnesses and making objections during testimony. The Newhouse students honed their skills as television journalists, performing live updates during breaks in the trial and producing a narrated report after its conclusion.
“I honestly don’t know of another law school that offers such a unique opportunity in a beginner’s trial advocacy class,” Berger says. “It gives law students an early taste of what it’s like to represent a client in the media as well as in the courtroom.”
Dean Boise Raises the College of Law’s Profile at the Annual NYSBA Meeting
At the New York State Bar Association’s (NYSBA) Annual Meeting in January 2020, Dean Boise moderated the Presidential Summit panel, attended by more than 500 people. The panel tackled head-on one of the most disturbing and enduring trends of our time—the rise of white nationalism and domestic terrorism. The topics and remedies discussed are resonating far beyond the discussion.
Boise also gave the Keynote Address to NYSBA’s Judicial Section. “Preparing Students for a 21st Century Law Practice” examined how Syracuse and other law schools are innovating curricula and programs and adapting to the future of law practice.
Professor Dorfman Spearheads New Empirical Study
Professor DoronDorfman and a team of researchers from the aChord Center: Social Psychology for Social Change at the Hebrew University of Jerusalem have been conducting research for the 2019 Municipal Accessibility Index in Israel.
The study examines the Israeli public opinion toward people with disabilities, as well as perceptions of accessibility in different areas of life (including social life, labor market participation, and health care) among disabled individuals.
Professor Kohn Joins Yale Law During Spring 2020 and Serves as Advisor to the American Law Institute
Professor NinaKohn, David M. Levy L’48 Professor of Law and Faculty Director of Online Education, spent the spring 2020 semester as a Visiting Professor of Law at Yale Law School. A faculty affiliate with Syracuse University’s Aging Studies Institute, Kohn taught a seminar on Law and Aging at Yale. Kohn’s research focuses on elder law and the civil rights of older adults and persons with diminished cognitive capacity.
Kohn also accepted an invitation from the American Law Institute (ALI) to serve as an advisor on the ALI’s Restatement of the Law Third, Torts: Concluding Provisions project. This project focuses on medical liability, vicarious liability, statutes of limitation, and wrongful death and survival actions.
“This project will play an important role in clarifying some of the most dynamic areas of tort law,” says Kohn.
Professor Emerita Wilhelmina Reuben-Cooke Remembered
Wilhelmina Reuben-Cooke, Professor Emerita of Law and an influential leader at Duke University, died October 22. She was 72.
A native of South Carolina, Reuben-Cooke was one of the first five African American undergraduate students at Duke University and was active in the civil rights movement.
She graduated from Duke in 1967 and the University of Michigan Law School in 1973. After graduation from law school, she worked in communications, antitrust, tax, securities, criminal, and general corporate law. She served as Associate Director of the Institute for Public Representation (IPR) at the Georgetown University Law Center and was responsible for litigation before the Federal Communications Commission and the federal courts, including the US Supreme Court, at IPR and the Citizens Communication Center.
Reuben-Cooke began her teaching career at the College of Law in 1986. While at the college, she drew on her experience to develop a summer externship program in Washington, DC, building the program to include studies in communications law, federal legislature advocacy, disability law, labor law, and civil rights. She also served as Associate Dean for Academic Affairs and directed the college’s academic programs. Reuben-Cooke left the College of Law in 2003 to become Provost and Vice President for Academic Affairs at the University of the District of Columbia, a position she held until 2007.
“Wilhelmina was a pioneering woman—here on the faculty at the College of Law and earlier as one of the first five black students to enroll at Duke University in 1963,” says Professor Paula Johnson, professor in the College of Law. “We first met at Georgetown University Law Center when she was Associate Director of the Institute for Public Representation and I was an LL.M. student with the Center for Applied Legal Studies. She was here when I first came to the College of Law and supported so many of us across the SU campus and throughout the Syracuse community. She will be greatly missed. May she rest in peace and power.”
“When I think of her, I think of her ability to maintain grace and warmth in spite of adversity and under pressure,” says Sarah Ramsey, Professor of Law Emerita. “She was a splendid presence at the College of Law and a wonderful friend and colleague.”
Professor Christian Day says Reuben-Cooke was a warm, bright, and infectious colleague. “Her smile lit up the room,” he says. “She was principled and fair, and her expertise in communications law established links with Newhouse. She was an exceptional mentor for many of our students.”
“Wilhelmina was a remarkable woman and role model in every way. She enriched the College of Law environment by her enormous contributions to our ways of interacting with one another and by living her commitments and values,” says Professor of Law Emerita Leslie Bender. “She enriched my life by the warmth, grace, intelligence, and friendship she offered. Those of us who were privileged to have been her colleagues and friends know how lucky we are.”
Reuben-Cooke served as a trustee of Duke University for two terms, and she held numerous honors, including the Duke University Distinguished Alumni Award and the Sojourner Truth Award from the Syracuse University chapter of the National Association of Negro Business and Professional Women’s Clubs.
She is survived by her husband, Edmund D. Cooke Jr.; two daughters, Wilhelmina Nilaja Cooke and Shani Malika Cooke; and several siblings, nieces, nephews, and cousins.
In 2002, a first-year law student arrived in Syracuse from Texas after hearing about a new course in disability law, taught by Professor ArleneKanter. She and other students soon prodded Kanter to offer more disability-related courses so they would be equipped with the knowledge and skills needed to secure a job in the relatively new field of disability law.
It took little prodding for Kanter to agree. By 2005, the faculty had approved the nation’s first Disability Law and Policy Program (DLPP), one that included the first joint degree in law and education, with a concentration in disability studies.
The Texan student was Julie Morse G’05, L’05. She and Crystal Doody G’05, L’05 became the DLPP’s first graduates. Both work at Legal Services of Central New York in Syracuse, representing individuals and families with disabilities, as well as clients with low incomes, on a broad array of legal issues confronting them. Over the past 15 years, DLPP has enrolled more than 300 students from the US and 14 other countries.
“Students bring questions that I would never think of, due to their geographic diversity, familiarity with technology and social media, and often their lived experiences as young adults with a disability.”
Passion & Persistence
Responding to the growing student interest in disability law with passion and persistence, Kanter worked closely with faculty in the School of Education to establish a new University-wide Disability Studies Program as part of her project for the 2005 Meredith Professor of Excellence in Teaching Award.
In fact, Syracuse University’s long history of disability research and advocacy was one of the reasons Kanter accepted her tenure track position in 1988. Faculty from the University’s Center on Human Policy had been experts in cases she worked on as a lawyer at a national disability law organization in Washington, DC. Today, Kanter holds a courtesy appointment in the School of Education.
Over its 15 years, DLPP has grown to include more collaborations across campus, as well as a curricular program for students who wish to specialize in disability law but who do not seek a joint degree. DLPP also offers students real-world legal experience through the Disability Rights Clinic, research positions, study abroad opportunities, and externships in London and cities throughout the US. Original graduates Morse and Doody are now externship supervisors for the program and continue to hire DLPP graduates at their office.
In 2014, with funding from the Open Society Foundation, DLPP started a master’s of law program for international students. Lawyers from such diverse countries as Argentina, Brazil, China, Ethiopia, Iraq, Kenya, Saudi Arabia, Spain, and Syria have participated, returning to their countries to work in the disability law field. In 2020-2021, the College will welcome scholars of international and comparative disability law into its new Doctor of Juridical Science program.
DLPP also hosts visiting scholars, including this year’s Fulbright Scholar, Dr. Smitha Nizar, a law professor from India who is working with Kanter on a project regarding the reproductive rights of women with disabilities.
Every Step of the Way
“No other law school offers such an array of disability-related academic programs and co-curricular opportunities,” Kanter observes. “We even have a student organization, the Disability Law Society. This, too, was a national first.”
DLPP strives to connect scholarship with the classroom, with Kanter inviting her students to work with her on projects and co-author articles. She sees her students as colleagues and future leaders in the field.
“Working with the students is my favorite part of my job,” Kanter says. “Not only am I realizing my professional goal of working for the rights of people with disabilities, but I get to bring my students with me every step of the way.”
Kanter continues, “When I helped draft the Convention on the Rights of People with Disabilities (CRPD) at the United Nations, for example, my students were active participants in the process.” For the past several years Kanter and her students have been invited to present their research at the UN General Assembly, the CRPD Committee, the Commission on the Status of Women, as well as a congressional committee.
“Students bring questions that I would never think of, due to their geographic diversity, familiarity with technology and social media, and often their lived experiences as young adults with a disability.”
Remarkable Success
Currently, Kanter is working with the Association of Higher Education and Disability and rising 3L Lillie Hiegel on a project assessing inclusion of students with disabilities in US law schools, and with advocacy organization Humanity and Inclusion (HI) on a project to raise awareness about violence against women with disabilities.
With HI, Kanter and Lucky Mahenzo Mbonan LL.M.’20 have built a research tool to assess the rate at which different countries are adopting policies to protect girls and women with disabilities from gender-based violence. Two years ago, she and Everlyn Milanoi Koiyiet LL.M.’15 worked with Disability Rights International on a report about abuse of children with disabilities in Kenyan orphanages.
Kanter says the first student she had who was blind—Koert Wehberg L’08—may have taught her more than she taught him. “He taught me how he experiences the world and the importance of universal design and technology, such as text-to-speech software, which allowed him to participate in class on an equal basis with other students,” Kanter says.
DLPP graduates have gone on to remarkable success. For instance, Wehberg is now Executive Director of the city of Philadelphia’s Mayor’s Commission on People with Disabilities, and he teaches disability law at Temple University Law School. He also was one of only a handful of graduates to receive the Equal Justice Works Fellowship.
Another DLPP joint degree student—Robert Borrelle Jr. G’13, L’13—also received the Equal Justice Works Fellowship and is now a staff attorney at Disability Rights California. Julie Morse has the distinction of being the only College of Law graduate to have been awarded the highly competitive Skadden Fellowship.
Sense of Belonging
To Kanter, disability rights is one of the most important civil rights issues of our time, especially during the COVID-19 pandemic when people with disabilities may be treated as expendable. “Disability rights is about equal rights and ensuring access, inclusion, and a sense of belonging for all people, regardless of how they may walk, talk, or learn,” she says. “That is not easy within the highly competitive law school culture.”
DLPP has now been recognized as one of the most innovative disability-related academic programs in the world. On Feb. 20, 2020, at the office of the United Nations in Vienna, the Program received the Essl Foundation’s Zero Project Prize for Innovative Practices, the only US law school to receive this prestigious international award.
“It is really quite remarkable and exciting,” Kanter says of the award. “I attribute it—as I do all of our successes—to my extraordinary students, with and without disabilities. I think Zero Project recognized our program because we strive not only to teach disability rights but also to recruit and support future lawyers with disabilities.”
Looking to the future—and at the suggestion of alumni—a new DLPP alumni association is in the works. Kanter wants to see it develop into a formal mentoring program: “Ultimately we will want to raise money for scholarships to support more students with disabilities and for students who want to go into disability rights law.”
At its core, Kanter says DLPP is a tight-knit program, assisted by professors Cora True-Frost L’01, Michael Schwartz, Doron Dorfman, and SuzetteMelendez. To this end, she spends countless hours urging colleagues and DLPP alumni to hire her students because they have skills and experience that can be gained practically nowhere else.
“My goal is for our graduates not only to find a job but to find one that will mean something to them and that will, I hope, help to make the world a better place for all,” Kanter says.
BBI Continues Its Work on Behalf of the Landmark Legislation
July 26, 2020, marked the 30th anniversary of the Americans with Disabilities Act, civil rights legislation that prohibits discrimination against individuals with disabilities in all areas of public life—including jobs, schools, and transportation—and all public and private places that are open to the public.
For the Burton Blatt Institute, the anniversary is a time for celebration and reflection. While the landmark legislation and related legislation (including the Americans with Disabilities Act Amendments Act of 2008) have done much to accommodate and integrate disabled persons—and to change society’s views and attitudes toward disability—barriers to full inclusion still exist.
Helping to oversee BBI’s ADA 30th anniversary commemoration— including at the website adaanniversary.org— University Professor Stephen Kuusisto, Director of Interdisciplinary Programs and Outreach at BBI, discusses the ADA’s profound effect on society, education, and culture, and what the future holds.
Thirty years on, how would you characterize the effectiveness of the ADA?
The ADA has been remarkably successful as a change agent for American culture, which isn’t surprising because one of its goals was to assist the disabled to enter public life. It’s no longer unusual to see wheelchair users, guide dog travelers, the deaf, and autistic folks participating in every area of civic life.
Along with this participation we see changes in the arts and popular culture. In the 1970s no one would have imagined prime time television shows featuring characters with autism. Disability is now better understood as a part of who we are as a nation.
One also could argue that the ADA created a new geographical imagination. That is, the legislation induced needed changes to public spaces; along with that came a host of new features for architecture, design, and cyberspace.
Observers talk about an ADA mindset among a new generation of disabled persons growing up after the legislation passed—can that idea be extended to the rest of the population?
It’s no longer acceptable to shrug off disability, although some might still wish to do so. For younger folks who’ve grown up after the adoption of the ADA, there’s an expectation that disability will be properly accommodated and that inclusion is to be expected.
That’s a sea change from my childhood, which took place pre- ADA. People in my generation had to fight to get into the room. I had a professor in graduate school tell me that I shouldn’t be in his class, owing to my blindness. That discrimination might happen today in some places, but I think it’s mostly a thing of the past. Society is more engaging and accepting of disability in general and of the disabled in particular. There’s still much work to be done, but a lot has been accomplished.
You’ve alluded to examples of the positive effects of the ADA for the general population. Can you expand on that idea?
Many people are unaware that some of the technologies they use daily are the products of disability design work. For instance, Siri and Alexa come out of work by Ray Kurzweil in the 1970s and 1980s. He invented talking optical character recognition systems for the blind.
The Kurzweil Machine was originally as big as a washing machine, and it had a copying machine glass top. You’d lay a printed book on the plate, and it would scan and read the pages aloud. That technology became the foundation for all kinds of contemporary talking devices. It’s also the case that once Apple decided to make every one of its products accessible for the blind, they found numerous ways to use text-to-speech to benefit every customer.
What improvements to the ADA and the integration of disabled persons into society can we look forward to in the next 30 years?
We desperately need to see new forms of pedagogy based on the understanding that in fact no two persons actually learn in precisely the same way. Work being done now to accommodate neurodiverse students or folks who are blind or deaf will likely lead to better integrated and inclusive forms of teaching and digitization.
If you were made ADA czar for a new presidential administration, what recommendations or actions would you take in your first 100 days?
I would tackle the disability-unemployment problem. Even 30 years after the passage of the ADA, the unemployment rates for the disabled remain terribly high. A figure that’s routinely accepted is that 70% of the disabled who are of working age remain unemployed in the United States. This can be changed with real incentives to small businesses and larger companies to hire the disabled. This solution is feasible, and it would get people off of Social Security disability and into the workforce. The long-term benefits would be remarkable.
How would you characterize BBI’s ADA-related work to those unfamiliar with your mission and projects?
BBI is named for Burton Blatt, a foundational scholar and activist who pioneered the field of disability studies here at Syracuse University. Dr. Blatt helped to revolutionize how we think about disability and helped us understand that disability is not what it seems.
One way to think about this perspective is that just as we understand people are not defined by gender or race, Burton Blatt showed us that the disabled body and our attitudes toward it are merely societal ideas and have nothing to do with the disability itself. Today, BBI works globally to promote inclusion and opportunity for the disabled by breaking down such barriers.
How is BBI helping to celebrate the 30th anniversary of the ADA?
Even as we speak I am working with the US Department of State to create a virtual poetry reading featuring some of our nation’s leading poets—with and without disabilities—to celebrate the cultural dimensions of disability art and civil rights. BBI is also planning future events that we hope will occur on the University campus once we’re able to convene in person again.
By Jan Fleckenstein G’84, G’86, L’11, Associate Teaching Professor of Law & Director of the Law Library
Over its long history the Law Library has been shaped by librarians, faculty, students, and by the generosity of donors into a vital resource for the study of law and for faculty research that explains and develops the law. Our commitment to service supports all members of the College community, and that commitment is the driving force behind the collections and programs that the library offers.
The library is responsive to student and faculty needs for research and study. It is creative in the way it provides print and electronic resources to support research and the curriculum. And it is collaborative in nurturing networks with the Syracuse University Libraries and other law libraries, as well as with law library consortia across the country and around the world, to maximize our access to the broadest possible range of legal information resources.
Dedicated to Learning
A spectacular Bernard R. and Carol K. Kossar Library Reading Room, divided from the Levy Atrium by a glass wall that soars 19 feet, makes the Law Library a visible symbol of the College’s dedication to study and learning.
A mixture of reading tables, research carrels, study tables, and computer workstations provides students with a choice of study spaces that best meet their individual needs. Wood-paneled, high- density mechanical book stacks, enough to hold 350,000 print volumes, fill the west end of the main floor and the center of the upper floor, leaving room around the perimeter to give library users access to natural lighting and expansive views overlooking the Onondaga Valley and the city of Syracuse. With card-swipe access 24 hours a day, seven days a week, law students can use the Law Library on a schedule that meets their needs: around classes, jobs, and family obligations.
When the library moved to Dineen Hall, it gained its first dedicated special collections space—the Peter Herzog L’55 and Brigitte Herzog L’75 Special Collections Room—as well as space to house College archives. We are now actively growing and curating not only the general collection but also our own collection of items that represent the College over its 125-year history.
The contours of the library’s collection are shaped by requests from students and faculty, by purchases to support specific courses in the curriculum, and by careful monitoring by law librarians of developments in legal scholarship and trends that must be reflected in a broad- based academic library collection.
The recently donated Ronald L. ’54, L’56 and Joanne J. Goldfarb ’57 Family Collection contains works that represent every intersection of law and society.
Interdisciplinary Collection
The permanent print collection forms the backbone of the Law Library’s information resources, including historical collections for research into the evolution of law and legal systems over time in local, state, federal, international, and comparative law. We house 65,521 print titles, augmented by a substantial collection of historical documents on two million pieces of microform. High-quality scanners enable us to convert documents stored in print or on microform into searchable PDFs and send them to users anywhere in the world.
The library is interdisciplinary in its collection policy, supporting research and scholarship in law and economics, politics, history, public policy, and the arts and humanities. This interdisciplinarity is reflected in recent donations such as the Ronald L. ’54, L’56 and Joanne J. Goldfarb ’57 Family Collection, which contains works that represent every intersection of law and society. While the library is open to the University community, the local legal community, and the general public, interdisciplinary works in our collection most often draw library users from outside the College.
To enhance our services, the library takes advantage of every new development in legal information databases and every advance in information technology. Our 247,625 print volumes are complemented by 41,532 electronic books, along with the general legal database services Westlaw, Lexis, Bloomberg Law, and Hein Online, plus individual databases in specialized subject areas.
Moreover, a mix of electronic and print resources provides a comprehensive platform for effectively teaching legal research skills and for helping students find the right information to complete their course assignments and their research projects.
“I most certainly envision a bright future in the law for generations of students to come.”
Rapidly Evolving
Although alumni may not remember it this way, learning to do legal research used to be fairly straightforward: use digests to find cases, use indexes to find statutes, and use the library catalog to find books on specific areas of the law.
That all changed with the introduction and growth of legal databases, which continue to rapidly evolve in content and features. Law librarians now focus on helping students choose the right databases, develop effective search strategies, discern the strengths and weaknesses of various online sources, and develop a sense of how different algorithms affect search results in different legal information products.
The JDinteractive online degree program provided the opportunity for the library to implement its vision of a service model for the future by creating an electronic counterpart to every in- person library function. Law librarians and library support staff leveraged that experience to pivot quickly to providing remote support for the College’s residential programs when the spring 2020 semester unexpectedly moved online during the COVID-19 crisis.
We were ready. By then, in addition to our services inside the Law Library, we already took reference questions through the library website—law.syr. edu/law-library—by email, phone, and text message. We consulted on research questions over Zoom. We checked out books remotely, shipped books to students, and provided shipping labels to make it easy to send books back. We already scanned and sent documents from the print collection to remote users. In anticipation of the future and continued demand for rapid service, we had already invested heavily in electronic resources and added a few new databases to replicate highly used portions of the print collection.
The Bernard R. and Carol K. Kossar Library Reading Room is a visible symbol of the College’s dedication to study and learning.
Suite of Services
The library provides the same robust suite of services to students and faculty remotely as if they were using the library in person.
The library has grown, adapted, and innovated over the past 125 years, in keeping with the mission of the College of Law. Law librarians are versatile in crafting collections and services that support student learning and faculty research. Law librarians who are technical specialists take advantage of new legal information products and electronic services that prepare students to be confident researchers in practice.
Because of our expansive view of the services that an academic law library should offer, our Law Library fulfills the legal information needs of its users, in person and around the world, wherever our academic and research interests take us.
I am honored to serve the College of Law, our students and faculty—and our profession—as Director of the Law Library. Above all, as I walk through the library, browse through our collections, and take stock of what we have built, I can almost hear the quiet whisper of generations past, and I most certainly envision a bright future in the law for generations of students to come.
Browsing the Growth of the Law Library from Bastable Block to Dineen Hall
An artist’s impression of Bastable Block c. 1895. The College of Law and its dedicated law library are joined in the rendering by the College of Letters and the College of Missionaries.
Sources: Jeffrey A. Unaitis, The Syracuse University College of Law: A Ninety Year Commitment to Excellence, 36 Syracuse L. Rev. 895 (1985). Margery C. Connor L’84, 100 Years: Syracuse University College of Law (1995).
“Pressing Wants”
When the College of Law opened in the Bastable Block in downtown Syracuse in 1895, students had access to the Court of Appeals Library. Containing approximately 20,000 volumes, this library was located nearby in the Onondaga County Courthouse, on the comer of Clinton and West Genesee streets.
The necessity of a dedicated and well-stocked law library to the educational and research mission of the College was evident from its founding, a fact expressed by University Chancellor James Roscoe Day in his 1896 report to the Board of Trustees:
“The College of Law immediately stepped out beyond experiment, and the report of the dean will show a remarkably loyal support of our renowned legal talent of the Onondaga Bar … It will find friends in due time to endow its library and meet other pressing wants. In the meantime, by the generosity of its friends, it has access to our noble law libraries and assistance to do its work in a satisfactory manner.”
Surrounded by library volumes, members of the Syracuse Law Review staff gather, possibly in the 1950s.
A Growing Collection
The library was central to plans for growth when, in the fall of 1898, the College moved into the newly erected University Block on East Washington Street. Specially designed second- floor quarters included classrooms, office space, an assembly hall—and a library.
With space to expand its collections, in 1899, Louis Marshall, an eminent New York City lawyer and long-time friend and law partner of College of Law Dean James B. Brooks, dedicated a gift of 1,500 volumes to the memory of their mutual law partner, the Hon. William C. Ruger.
Later additions from the Marshall and Ruger collections, as well as from the Brooks Library, formed a new nucleus for the growing collection that now included full sets of the Reports of the US Supreme Court; court reports of the states of New York, Massachusetts, New Jersey, Pennsylvania, Vermont, and Connecticut; and an entire set of English Reports, said to be a “verbatim reprint” covering 1307 to 1865.
“Make It Worthy”
In 1927, Harvard Law Scool Dean Roscoe Pound released his 25-page Survey of the College of Law of the University of Syracuse and Project for Its Reorganization. Known as “The Pound Report,” it found that the College had the “foundation” of a good library, but that a $25,000 investment would be needed to “make it worthy of the school.”
Illustrating the importance of research to the modern law school, Pound noted that law teachers were now expected to do more than “simply deliver a set number of lectures each week” and that part-time teachers couldn’t be expected to also perform legal research, work that “cannot be divorced from the teaching function.”
A “Working Tool”
Modernization of the Law Library continued in the late 1930s and early 1940s. Generous appropriations made by the University helped update the treatise section and supplement statutory services and the reports of court and administrative decisions. At this time a review of the library considered it an “adequate working tool” for its students, but needs continued to grow, especially after World War II.
In June 1953—thanks to a principal gift from Syracuse lawyer and businessman Ernest I. White—groundbreaking took place for a University campus building dedicated to the College of Law. Opened in September, this was the first time in its history that the College had occupied a facility built expressly for the study of law, with the 60,000-volume Law Library as its focal point. The dedication of White Hall included the following description of the library:
“… for effective legal education, the building centers about a law library in which the William Rubin Memorial Reading Room on the second floor opens directly into four decks of library stacks … the reading room has comfortable study space for 80 students and in the stacks are window-lighted carrels providing research space for an additional 44 students.”
The Barclay Law Library was dedicated in 1985 after a successful Campaign to Build a Law Library raised $2.3 million.
Approaching Capacity
By 1974, with enrollment approaching 600 students, the original White Hall library had doubled its capacity to 120,000 volumes. Strategy for the next 10 years would be critical if the College was to maintain its growing position as a trailblazer in legal education.
In 1979 planning began in earnest—under the direction of Dean Craig Christensen and Law Library Director Thomas C. Kingsley—for a new library, along with a major renovation of White Hall.
Led by N. Earle Evans ’42, The Campaign to Build a Law Library started in 1981. By May 1983, 1,400 alumni and friends had contributed $2.3 million and ground was broken, with construction taking about 18 months. A generous gift from H. Douglas Barclay L’61, H’98 capped the campaign, and in March 1985 both the H. Douglas Barclay Law Library and the newly renovated White Hall were dedicated.
The Barclay Law Library was designed to hold 200,000 volumes, and it wasn›t long before yet another expansion was required. A 1990 survey found that the College now lacked adequate student workspace, seminar rooms, and courtrooms, so along with plans to build what became Winifred R. McNaughton Hall, the library was built out once again, taking over the fifth floor of White Hall.
Technologically Advanced
In May 2012, the College of Law broke ground on a new headquarters across Irving Avenue from White and MacNaughton halls. The new building would provide a LEED- certified, high-tech living/learning environment to deliver a 21st century legal education. The 200,000 square foot Dineen Hall— named for the family that provided the lead gift in the fundraising campaign—was opened in September 2014.
The nearly 32,000-square-foot state-of-the-art library within Dineen Hall includes 44,000 linear feet of shelving; 560,000 volumes in print and microform, including sets of books received from law firm and private family collections; advanced study spaces; 42 computers; the spacious Bernard R. and Carol K. Kossar Library Reading Room; and the Peter Herzog L’55 and Brigitte Herzog L’75 Special Collections Room. All these assets are complemented by the library’s growing online presence, which maintains 41,532 electronic titles and 49 legal topics databases.
The Peter Herzog L’55 and Brigitte Herzog L’75 Special Collections Room in the 32,000 square foot Dineen Hall Law Library.
Eye Toward the Future
The Law Library always operates with an eye toward the future. Today, the library serves not only those students and faculty located in Syracuse but also students, faculty, alumni, and other legal practitioners throughout the world.
As with all libraries, the Law Library continues to digitize and provide access to analog and print resources that are critical components of a legal education and legal research. Digital stewardship, also referred to as digital preservation, will not only preserve the library’s unique materials but also will ensure continuous access to the collection, at any time, from anywhere, physically or remotely.
For example, recordings of moot court competitions, negotiations, and presentations are an excellent resource for the students in the Advocacy Program, and they must be preserved to keep them usable. Similarly, the library archives reflect not just the history of the College, but the history of the development of American law over the past 125 years.
Searchable text greatly increases capacity and ease of use for research, for students, faculty, and the legal community at large. Thus, the library will continue to leverage technology and expertise in order to make the records that document the law’s evolution available and accessible to all.
One of the fastest growing areas of concern for local governments involves the intersection of disability law with land use planning and zoning.
Many of the legal issues for property, land use, and zoning lawyers involve interpreting rules and guidelines requiring improving the accessibility of the built environment, while other important issues relate to the defenses available to local governments and businesses when charged with complaints of discrimination based on lack of accessibility or failure to accommodate.
In this essay, Professor Robin Paul Malloy—E.I. White Chair and Distinguished Professor of Law, Kauffman Professor of Entrepreneurship and Innovation, and the author of several books on disability law and land use— examines an area of law that can be complex, confusing, and underdeveloped, and sometimes the source of costly and prolonged litigation.
In practice, accessibility is an important issue confronting our cities, but under US disability laws, accessibility is balanced with numerous other interests, including property rights and the ability of local governments or private parties to pay.
In advancing accessibility in our communities, it is important to know the actual legal requirements of an action and to frame arguments in response to these requirements.
To begin with, land use planning and zoning involve a system of public and private land regulations that connect and coordinate physical places and social spaces into communal networks. These networks include the places and spaces where people work, play, shop, entertain, eat, receive health care, vote, raise their families, and otherwise live their lives as individuals and as members of communities.
Access to these networks is important because these networks shape people’s opportunities and influence their quality of life. Having a disability can often limit one’s access to these important communal networks, either as a result of physical barriers or as a result of discrimination. Therefore, it is important for planning and zoning officials to think beyond inclusive design issues at specific property locations and work for connectivity between and among the venues within which community life takes place.
The importance of addressing accessibility is highlighted when we account for the fact that 25% of Americans have a disability of some type. More specifically, when considering only disabilities that effect mobility, close to 20% of American families have a family member with a mobility impairment.
The rate of mobility impairment is significant when we are managing and coordinating land uses across the built environment. Moreover, the rate of disability and of mobility impairment increases with age, and America has an aging population. Currently 64% of the US population is 50 years and older, with 23% being 65 and older.
Demographic trends indicate a need for greater planning so that our communities are safe and easy to navigate by everyone, including people with disabilities and people seeking to age in place.
Key Concerns
In working to make our communities more accessible, we need to start by acknowledging three key points:
The problems of accessibility are big, and not small. People often think that disability affects only a small percentage of the population because they associate disability with the iconic image of a person in a wheelchair, and only 1% of the population uses a wheelchair. In reality, the statistics cited above on the rate of disability in America tell the true story of the needs confronting our communities.
Some property lawyers are unaware that the Americans with Disabilities Act (ADA) and related legislation apply to state and local land use planning and zoning activities. Others are aware but lack clarity as to exactly what the disability laws may require of property, land use, and zoning lawyers, since they perceive such matters as the work of disability rights lawyers.
Many of the planning and zoning issues concerning the rights of people with disabilities have little to do with accessible designs. Moreover, designing accessible buildings and spaces are matters better addressed by architects and code enforcement officers than lawyers. While compliance with these codes and standards is important, the key concerns of land use and zoning lawyers go beyond compliance with design guidelines. Disability law at the intersection of land use and zoning is not just about designing doorways, bathrooms, and office space. It’s about interpreting, classifying, and applying regulatory standards and advising local governments on avoiding actions that may be found to be discriminatory.
Competing Interests
Many of the legal issues involved at the intersection of land use law and disability have to deal with mediating competing interests and rights with respect to accessibility and its cost.
From a property, land use, and zoning perspective, it is important to recognize both the requirements and limitations of our disability laws. Local governments, in particular, need good legal advice on the specific requirements of our disability laws so that they can meet their obligations to residents while defending against claims of noncompliance.
In discussing these issues, I consider three examples. All three are related to public land use and zoning activities focused on the application of Title II of the ADA. Title II applies to programs, services, and activities of state and local governments. This has been held to include all of the activities and functions of local planning and zoning officials.
To the extent that housing is involved, the Fair Housing Act (FHA) is also applicable. The FHA requires planning and zoning officials to afford people with disabilities an equal opportunity to obtain and enjoy housing in the same way as people without disabilities. In recognition of space limitations, I do not address issues arising in the context of private places of public accommodation as covered by Title III of the ADA, nor do I discuss the Rehabilitation Act or the Architectural Barriers Act.
The ADA requires “new construction” and “alterations” of existing facilities to be accessible to the maximum extent possible. The only defense to a complaint of noncompliance is, structural impracticability, which is extremely difficult to demonstrate. Nonetheless, local governments can make out a case of structural impracticability by focusing on engineering and other difficulties.
Reasonable Accomodations
As to programs, services, and activities, these must be accessible to the maximum extent possible, and the defense to a claim of lack of accessibility is a showing of an undue administrative or financial burden. This is demonstrated by financial and economic evidence and is much easier to demonstrate than is structural impracticability.
In addition, the ADA and the FHA prohibit discrimination against people with disabilities. There are three methods of demonstrating discrimination:
Disparate impact (showing, with the use of statistics, that a planning or zoning policy has a disparate impact on people with disabilities as compared to people without disabilities).
Failure to provide a reasonable accommodation or modification when requested.
Currently, most litigation involves the alleged failure to provide a reasonable accommodation or modification. Some disability rights advocates assume that persons with disabilities are entitled to an accommodation by simply demonstrating that they have a disability. Some also mistakenly believe that the person with a disability should be granted the particular accommodations/modifications being requested. This, however, is not what the law requires.
Reasonable accommodations/ modifications only need to be granted if the plaintiff can make a prima facie case with respect to three criteria that will be discussed below. If the local government planning or zoning board is able to carry the burden in countering the assertions of the plaintiff, the requested accommodation/modification may rightfully be denied.
“Disability law at the intersection of land use and zoning is not just about designing doorways, bathrooms, and office spaces. It’s about interpreting, classifying, and applying regulatory standards.”
Variance Requests
Judicial opinions have clarified the term reasonable accommodation as meaning the making of an adjustment or exception to local planning and zoning rules, policies, plans, or procedures, whereas the term reasonable modification means making an adjustment to a physical space, facility, or environment.
Below, I provide three examples of zoning matters addressing the requirement for reasonable accommodations. One of these situations involves what zoning people will recognize as an area variance, and the other two involve use variances. There is one significant difference. A variance, of either type, runs with the land (runs to future owners), whereas a reasonable accommodation/modification is personal to the person and does not run with the land.
First, let us consider an example of a typical area variance request. To begin with, a variance involves a petition for an exception from a rule, policy, plan, or procedure. In the zoning context, state and local law establishes the specific criteria to be considered in reviewing a petition for a variance.
A request for a reasonable accommodation/modification by a person protected by the ADA and FHA often starts as a petition for a standard zoning law variance. Failing to meet the requirements for a standard variance, the person then typically petitions for an exception based on the right to a reasonable accommodation/modification under federal disability law.
The accommodation claim is one of asserting that notwithstanding the inability of petitioner to meet the criteria for a variance as provided for under state and local law, the petitioner as a person with a disability is entitled to an exception to the land use requirements as a reasonable accommodation. Failure to provide a “reasonable” accommodation, when requested, is an act of discrimination in violation of federal law. The difficult legal question is one of determining what is reasonable.
So, let us assume that a city has a zoning code that provides for all structures to be set back from the front property line by at least 25 feet. The petitioner has a home that is set back 26 feet from the front property line but now petitioner seeks to add a ramp to the front of the house so that a wheelchair user can easily and safely navigate ingress and egress to the front door of the home.
The proposed ramp is to be constructed by the petitioner from two-by-fours and when completed will extend 12 feet into the required front yard setback. Since this encroachment on the setback is a violation of the code, the property owner must seek an area variance. Assume that after evaluating the requirements for an area variance under state and local zoning law, the variance petition is denied. Now, if the petitioner affirmatively requests an accommodation, the local zoning board must move forward to evaluate the petition on the criteria for a reasonable accommodation. There are three criteria for a reasonable accommodation and they include:
It must be reasonable (using a cost and benefit analysis).
It must be necessary (using a “but for” test to show that “but for” the accommodation and its ability to address the person’s disability, the person will not be able to enjoy an equal opportunity to live in this community).
It must not fundamentally alter the plan for the development and regulation of the community.
The zoning board needs to take evidence on each of these three factors and then, based on the totality of the evaluation, determine whether or not the requested accommodation is reasonable. While each case is fact specific, the requirements as to probative value of evidence as to each of the three factors must be gathered from various case opinions. A decision against the petitioner may be appealed to state or federal court. On appeal, a zoning board determination is reviewable on a rational basis standard, meaning that if the zoning board denial is rational and supported by competent evidence in the record, the accommodation can legally be denied.
Professor Robin Paul Malloy’s new book—Disability Law for Property, Land Use, and Zoning Lawyers (ABA, 2020)— explains how to navigate one of the fastest growing areas of concern for local governments: the intersection of disability law with land development, planning, and regulation. Learn more in our Faculty Books section on p54.
Alternative Ways
Thus, a local zoning or planning board must be prepared to apply state and local zoning law to a variance request and also federal disability law if the petitioner is protected by our disability laws. It is important to note that in making its determination, a planning or zoning board may consider alternative ways of accommodating the petitioner even if the petitioner has only requested one way of addressing an accommodation.
In this process, second level issues also arise and need to be addressed. For example, assume a board determines that the request for a ramp is reasonable, then the issue arises as to can they control the design of the ramp and the materials used in the construction of the ramp? In other words, can the board impose requirements that make the construction of an approved ramp twice the cost of the ramp proposed by the petitioner?
The answer is “yes,” the board can impose conditions that raise the cost to the petitioner. Beyond this, consider yet another issue that may arise. In as much as interpreting the code to allow for a reasonable accommodation does not involve a granting of a zoning variance that runs with the land, might the board require the petitioner to remove the ramp when the petitioner leaves the property? Again, the answer seems to be “yes.”
A petitioner granted an accommodation can be required to bear the cost of rehabilitation of the property when they leave, unless the rehabilitation cost is perceived as so burdensome that it would cause a person not to exercise their right to request an accommodation in the first instance.
Permitted Use
The above described analysis has been applied to petitions for ramps, decking, pathways, and even therapeutic swimming pools. Many of the cases illustrate that local planning and zoning boards are underprepared to handle even simple disability petitions, and as a consequence they end up being pursued on charges of discrimination.
As a second example, consider a request for a use variance. This is a request to use a property for a use that is not otherwise permitted under the zoning code. Assume a city has designated a downtown zoning district for commercial redevelopment and has identified a variety of commercial and business uses as permitted within this zone. A not-for-profit agency identifies a building within this zone in which it would like to open a clinic to provide services to people recovering from drug and alcohol addiction. The clients of this clinic are protected under the ADA.
On application for a permit to open a clinic, the agency is denied on the grounds that such a clinic is not a permitted use in the redevelopment zone but would be appropriate in another zone. The agency then seeks a reasonable accommodation to permit the use within the zone, notwithstanding the provisions of the code and their inability to meet the criteria for a use variance under state and local zoning law.
The planning and zoning board must then be prepared to evaluate the petition for a permit on the basis of the three criteria for a reasonable accommodation. The cases are clear that such challenges can be made and litigated (imposing time and costs) and less clear on when and if the use accommodations are required.
Service Animals
Third and finally, consider another use accommodation request. In a single-family residential zone with home lots of one to one-and-a-half acres, only domestic pets are permitted. Farm animals are specifically excluded. One property owner generates complaints because she has recently purchased a miniature horse as a service animal for her young daughter. Her daughter has difficulty with her balance and with walking. The miniature horse has been trained to walk with the young girl so that she can lean on the horse for stability and balance. Working with the horse, she is able to walk in her backyard and obtain much needed exercise. Neighbors complain to the city about the presence of the horse and all that goes with housing a horse on a one-acre residential urban lot.
In this situation, a miniature horse—just like a service dog—is specifically covered by the ADA as a service animal. If the miniature horse is trained to provide the assistance, is controllable by the owner, and poses no danger to others, it will be permitted to be on the property.
For this case, the local planning and zoning board will need to make findings as to the qualification of the miniature horse in terms of training, being under the control of the owner, and posing no harm to others. Part of the posing no harm determination will include looking at the steps taken to ensure sanitary conditions on the property.
If the service animal criteria are met, the property owner will be entitled to maintain the miniature horse on the property under both the ADA and FHA.
“Local planning and zoning officials need to be knowledgeable about our federal disability laws and account for them in their practices.”
Effective Representation
As this essay illustrates, local planning and zoning officials need to be knowledgeable about our federal disability laws and account for them in their practices. Adjusting for accommodations can be disruptive to the process of planning, but it is sometimes necessary to ensure the protection of the rights of people with disabilities.
There are, of course, many more issues than these involved at the intersection of land use law and disability. For example, lawyers need to determine who is a protected person under each of the various disability laws, and they must assess standing, particularly in situations of third-party standing in bringing a lawsuit on behalf of clients who may be protected persons under these acts.
Lawyers must also classify and define such concepts as:
New construction
Alterations
Programs, services, and activities of state and local government
Facilities
Reasonable accommodations/modifications
Accessible to the maximum extent possible
Structural impracticability
Readily achievable
Undue administrative and financial burden
In addition, special rules apply to historic buildings and historic preservation districts, and additional regulations apply to places of public accommodation and to private land restrictions operating in such settings as residential subdivisions and condominiums.
My research, writing, and teaching cover each of these areas at the intersection of land use law and disability, and I believe strongly that the ability to handle these issues is essential to the future practice of property and land use law.
At the College of Law, I educate property development and land use students to navigate disability law. The next step for legal education is to build out the capacity for educating and training all future property, land use, and zoning lawyers, so that as a profession we can effectively represent local governments and the people protected by our disability laws.
The team of 3Ls Alex Eaton and Tyler Jefferies, arguing for the defense, won the 43rd Annual Lionel O. Grossman Trial Competition held virtually on March 25, 2021. Jeffries also won Best Advocate. The prosecution team of 2Ls Will Hendon and Nate Kelder were the other finalists for this Travis H.D. Lewin Advocacy Honor Society (AHS) intramural competition, held virtually for the first time in its history.
The Hon. Glenn T. Suddaby L’85, US District Court Judge for the Northern District of New York, was the presiding judge for the final round. The Hon. Rodney Thompson L’93 and the Hon. Bernadette Roman-Clark L’89 joined Judge Suddaby on the bench.
The teams argued the case of District of Orangeville v. Logan Dunn. “This was a double homicide charge where two little girls were killed in a house fire, believed to be started by the defendant, the girl’s adopted father who never wanted children,” explains 3L Joseph Tantillo, AHS Executive Director. “The defense prevailed in proving the innocence of their client, in particular by an excellent cross-examination of the prosecution’s expert witness, which demonstrated the flaws in her fire investigation techniques.”
Tantillo continues, “Trial is the most difficult type of advocacy to perform over Zoom, and our competitors did a wonderful job. The final was one of the best we’ve seen in years, and the judges echoed that sentiment. Congratulations to the winners and thank you to everyone who made the competition a great success.”
Praising the student advocates at the end of the competition, Judge Suddaby said, “I’ve been doing this a long time, since law school. I’ve judged a lot of moot court competitions; the four of you are four of the best I’ve ever seen. Those were the two best opening statements in a moot court competition since I’ve been doing this … I’m just so impressed with all of you; you have a great future ahead of you.”
