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.
“Our new identity recognizes the essential interdisciplinary nature of contemporary security challenges,” said the Hon. James E. Baker in November 2019, announcing a new identity for the College of Law’s national security institute, which he directs.
“As the Syracuse University Institute for Security Policy and Law (SPL), we continue our mission to conduct leading-edge policy and law research and analysis across disciplines and to educate and inspire the next generation of security thought leaders and practitioners.”
Founded as the Institute for National Security and Counterterrorism in 2003 by Professor Emeritus William C. Banks, the Institute has become a national leader in the teaching and analysis of a spectrum of security topics, including homeland security, the law of armed conflict, violent extremism, postconflict reconstruction, disaster response, the rule of law, veterans’ affairs, diversity in the intelligence community, cybersecurity, critical infrastructure, and emerging technologies.
The Institute’s new identity reflects the breadth of its activities, and it acknowledges the Institute’s longstanding flexibility in addressing novel security challenges—both within the United States and around the world—through multidisciplinary research, teaching, public service, and policy analysis.
“A prime mover in national security policy and law, the Institute for Security Policy and Law is poised for the future,” says Dean Boise. “I am particularly excited about SPL’s expansion into emerging technologies, the private practice of security, and diversity in the intelligence community. These changes are transforming the workplaces our students are entering. By staying abreast of these trends, the Institute will remain a premier training ground for future practitioners.”
SPL continues to offer three groundbreaking, interdisciplinary certificates of advanced study: Security Studies, National Security and Counterterrorism Law, and Postconflict Reconstruction. More than 700 students have earned SPL certificates since 2003. Alumni work across national and international security sectors, including for US and foreign governments, international humanitarian organizations, intelligence agencies, think tanks, NGOs, and they serve in all five branches of the US military.
Engaging Security: SLP’s Year in Review
Summer 2019
SPL Deputy Director Robert B. Murrett presides over a kickoff meeting for the SyracuseUniversity Intelligence Community Center for Academic Excellence (ICCAE). SPL led an effort that resulted in the University being designated an ICCAE, a highly competitive, congressionally mandated program that is funded by the US Office of the Director of National Intelligence and that partners with universities to diversify the US intelligence workforce.
SPL students pose on a tour of historical sites during their graduate study abroad program in Israel and Palestine. Through SPL’s long- running Program on Security in the Middle East, graduate and law students experience firsthand the dynamic and enduring security challenges facing the region. Study abroad fellowships are funded by Gerald B. Cramer ’52, H’10 and Carol Becker ’76.
Fall 2019
In September 2019, Professor Emeritus William C. Banks spoke on the Institute for Counter-Terrorism World Summit panel “When Conflicts End and How: ISIS as a Case Study.” The panel—the inaugural meeting of “The End of War Project”—was offered in memory of longtime SPL supporter Gerald B. Cramer ’52, H’10. Banks offered a remembrance of Cramer’s life and career.
SPL Distinguished Fellow Avril Haines, former Deputy National Security Advisor to President Barack Obama and Deputy Director of the CIA, spoke at Dineen Hall on October 8. She discussed the structure of national security law and policy in federal government and her experience as both a recipient and provider of national security legal advice.
In October 2019, SPL Director the Hon. James E. Baker was named a National Academy of Public Administration Fellow. NAPA is a congressionally chartered academy providing expert advice to government leaders. Induction is considered one of the leading honors for public administration scholars.
The inaugural Carol Becker Lecture was held at Syracuse University’s Lubin House in New York City on October 20. In front of a packed audience, award-winning journalist George Packer and Judge Baker discussed “American Leadership in the 21st Century.” Dean Boise, University Trustee Christine Larsen G’84, and Carol Becker ’76 were among the special guests.
During an October 22 visit to Dineen Hall, SPL Distinguished Fellow Steve Bunnell, former General Counsel of the US Department of Homeland Security (DHS), discussed careers in national security and the US government’s approach to cybersecurity, which he helped to oversee at DHS.
University benefactor Andrew T. Berlin ’83 (center) joined an Andrew Berlin Family National Security Research Fund Scholars Workshop in Dineen Hall on October 26. Subjects workshopped included nuclear deterrence, autocratization in Turkey, postconflict Sierra Leone, and the history of refugee crises.
In November, SPL announced a $500,000 research partnership with the Center for Security and Emerging Technology to assist CSET in investigating the legal, policy, and security impacts of emerging technology.
During SPL’s second annual Veterans Day Celebration, 100-year- old World War II veteran Stan Stanley thrilled the audience with his tale of being rescued from a crashed bomber by the Dutch Resistance. Afterward, Judge Baker presented Stanley with a US flag recently flown over the Court of Appeals for the Armed Forces. Also honoring advocacy group Clear Path for Veterans, the celebration was organized by SPL, the National Security Student Association, and the Veterans Issues, Support Initiative, and Outreach Network (VISION).
Spring 2020
The Hon. John E. Sparks, US Circuit Judge of the United States Court of Appeals for the Armed Forces, was a guest of honor in February 2020. Judge Sparks related his experiences as a marine, Deputy Legal Advisor in the National Security Council, Special Assistant to the Secretary of Agriculture, and military judge. The talk was co- sponsored by the Black Law Students Association.
Special Inspector General for Afghanistan Reconstruction John Sopko was a guest in Professor Tom Odell’s Rule of Law in Postconflict Reconstruction class on March 10. Sopko, Odell, and Professor Cora True-Frost L’01 explored lessons learned in reconstruction, fighting corruption, and peacebuilding in Afghanistan since 2001. Sopko’s visit was part of the David F. Everett Postconflict Reconstruction Speaker Series.
As the COVID-19 pandemic unfolded in April 2020, Judge Baker appeared on CNBC’s Markets in Turmoil to discuss the Defense Production Act and the powers it gives to the president to ameliorate a public health crisis.
In his new book—The Centaur’s Dilemma: National Security Law for the Coming AI Revolution, published by Brookings in June 2020—Judge Baker addresses how national security law should be applied to the emerging field of artificial intelligence. Learn more in the Faculty Books section on p54.
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.”
Starting with the Class of 2023, students in Syracuse University College of Law’s residential J.D. program will have the option of spending their third year entirely off-campus while still taking courses from College of Law faculty. Specifically, students in good standing will have the option to enroll in the “Third Year Away” program, which will allow them to satisfy their remaining requirements for graduation by completing a supervised externship in a legal practice setting and by taking up to 12 credits of interactive online courses.
“Syracuse prides itself on a robust and innovative curriculum,” says College of Law Dean Craig M. Boise. “The College is now adding a new option for incoming students that will enhance our ability to provide them with both the doctrinal knowledge and the practical and professional skills necessary for the 21st-century legal profession.”
The Third Year Away Program builds on the College’s established Externship Program, which features placements and accompanying seminars in London, New York City, Philadelphia, Atlanta, San Francisco, and Washington, DC—with plans to add more locations throughout the United States and beyond. The Externship Program leverages the College’s global alumni network to offer semester-long placements accompanied by faculty-led, substantive seminars focused on building professional skills.
The new option also capitalizes on the College of Law’s JDinteractive (JDi) program, the nation’s first ABA-accredited, fully interactive, online J.D. program. As part of the JDi program, the College of Law already offers an array of online courses in addition to intensive residential courses. Each online course consists of live class sessions and self-paced class sessions taught by the College of Law’s faculty. The JDi infrastructure, which allows the College to teach and support JDi students around the world, will allow the College’s residential J.D. students enrolled in the Third Year Away Program to participate in the academic, intellectual, and social life of the College when off-campus.
“Increasingly, our J.D. students gain valuable skills and professional experience by working as externs in judicial settings, law firms, corporate legal departments, government agencies, and non-profits,” adds Dean Boise. “By allowing students to participate in externships across the nation, while still taking doctrinal classes with our faculty through online courses, we are providing them the opportunity to learn both the substance and the skills they need for success. With Third Year Away, we are truly breaking new ground in legal education.”
“Third Year Away capitalizes on two of the College of Law’s strengths: our first-rate online classes and our far-reaching Externship Program,” says David M. Levy Professor of Law and Faculty Director of Online Education Nina Kohn. “While other law schools are contemplating ways to add remote learning options that increase flexibility for their upper-class students, with JDi fully underway, Syracuse already has the infrastructure, the courses, and the faculty expertise to make it happen. Moreover, Third Year Away allows students to get a jump start on their careers by combining their doctrinal coursework with field placements in the communities they seek to work in post-graduation, affording them greater opportunity to develop and strengthen professional networks that can help accelerate their job opportunities.”
Prospective students who wish to learn more about Third Year Away should contact the Office of Admissions and Financial Aid by phone at 315.443.1962 or by email. All other inquiries should be directed to Director of Communications and Media Relations Rob Conrad at 315.443.9536.
Michelle Rafenomanjato LL.M.’19 is Building Her IP Career on Her Syracuse Training—And Missing the Snow!
It’s a long, long way from Madagascar to Syracuse, NY, but intellectual property lawyer Noro Michelle Rafenomanjato LL.M. ’19 is living proof—both in her cosmopolitan education and her burgeoning internationally focused career— that in a global economy, distance is just another number.
Since graduating from Syracuse—where she pursued a master of laws degree as a Fulbright scholar—Michelle has been appointed Director of the Intellectual Property (IP) Department of Madagascar Conseil International (MCI). A Malagasy law firm founded in 1999, MCI advises international clients on legal and tax strategies when doing business in the French-speaking island nation.
“The work I perform is diverse: clearance searches, drafting and filing applications, IP due diligence, and legal advice on trademarks, designs, and patents,” explains Rafenomanjato, who also holds a master’s in public international law from Versailles University, France, and a Ph.D. in international law from Zhongnan University, China. “I also attend international conferences, the most recent one being the January 2020 Innovation & IP Forum and Awards in Paris.”
In addition to being in charge of the IP department, Rafenomanjato works with the rest of her team on business law-related issues— such as arbitration and contracts—and, given her language skills, on cases involving English- speaking clients.
How has your training at the College of Law helped you in your position at MCI?
My training has helped me deepen my knowledge of IP law, and it complements the legal training I did in France and China.
First, my courses—in legal writing, contracts, international business transactions, and business associations—provided me with a solid legal background in business law and legal English. As a lawyer working with international law firms and English-speaking clients, I now feel more confident communicating in English, both orally and in writing.
I also took IP and trademark courses with professors ShubhaGosh and Howard Leib. I truly appreciate Professor Ghosh’s cross-cutting approach and his close-to-real-life assignments. Plus, I benefitted from Professor Leib’s out-of- the-box thinking and practical tips from his 35 years of experience as a trademark attorney. Apart from the courses, conferences with IP practitioners organized by the Oce of Career Services and the Intellectual Property Law Society were a unique opportunity to meet like-minded people and build a network of IP experts. This comes in handy as my firm’s IP department wants to increase collaborations.
My courses—in legal writing, contracts, international business transactions, and business associations—provided me with a solid legal background in business law and legal English.
How would you compare US and Malagasy law?
One difference lies in our respective legal systems. The United States is a common law country with a federal system, whereas Madagascar is a civil law country with a unitary system. Thus, the US has 51 legal systems—the federal system and the legal systems of 50 states—whereas Madagascar only has one legal system. Plus, unlike the US, Madagascar has courts that handle public law-related cases and courts that handle private law-related cases. Despite those differences, there are common legal concepts that are encountered in both legal systems: privity of contract, force majeure, and due process, to name a few.
What is your fondest memory of studying at the College of Law?
My fondest memory was an event called the United Nations of Food. Inspired by an eponymous website, the event was initiated by Aili Obandja LL.M.’19, our class senator, and organized by LL.M. students. Each student brought typical foods from his or her country. I brought rice, greens stew, beef strips (kitoza) and peanut sauce (rougail). Our senator made a flag for each country, which made each student beam with pride. Professors and J.D. students also attended. It was an original way to celebrate our differences, share our uniqueness, and allow people to discover new cultures.
What do you miss most about Central New York?
Although this may sound cliché, I miss the snow. Since we do not have snow in Madagascar, it was always mesmerizing to watch it fall and to admire the already breathtaking campus covered with a white blanket. Living in a snow globe for six months was an unforgettable experience. I also miss Christmas in Skaneateles, NY—a snowy village, with people dressing as characters from A Christmas Carol.
What advice do you have for a foreign lawyer who wishes to study the law in the United States?
Studying in a language different from yours, in a country with a culture different from yours, or in a country with a legal system that is different from yours can be quite daunting and perhaps disorienting at times. Preparation is key. The more prepared you are, the better. Before you leave, gather as much information as you can about academic and non-academic expectations and requirements.
Once you are in the United States, build and rely upon a strong support network, including administrative and teaching staff, classmates, and associations. I counted on Assistant Dean of International Programs Andrew Horsfall L’10 and International Programs Academic Coordinator Kate Shannon, my family and friends, my classmates, the Fulbright family, Orange Orators members, the Success Saturday team, MCI colleagues, as well as the US Embassy in Madagascar. This support network made Syracuse and the US feel like home, and I must acknowledge that those people played a tremendous role in helping me adjust, succeed, and grow as a professional.
BRIAN BAUERSFELD L’04 BRINGS JUSTICE TO THE NYS CORRECTIONAL SYSTEM
According to Brian N. Bauersfeld L’04, there is rarely anything routine about his job at the Auburn Correctional Facility in Auburn, NY. “Every day you might happen upon a new obstacle, and just when you think you’ve seen it all, you can get a shock!”
Bauersfeld is one of a new generation of lawyers working inside the New York State Department of Corrections and Community Supervision as a commissioner’s hearing ocer. His task is to ensure that prisoner discipline is performed professionally and justly.
“Hearing officers preside over disciplinary hearings of inmates who have violated the prison’s internal rules,” says Bauersfeld, explaining that inmates must abide by a rule book they receive when they enter the prison.
Although prison officials from various departments may preside over a disciplinary hearing—a deputy superintendent, say, or an education supervisor—in the early 1980s, New York State pledged to hire more trained lawyers to act as hearing officers in order to bring more expertise to the work.
As an experienced attorney, Bauersfeld conducts some of the more difficult cases, and not just at Auburn. “Occasionally, I go on the road to Sing Sing, Attica, Clinton, and Great Meadow.”
Typically, a prisoner accused of violating rules will be issued a misbehavior report. “That acts as a charging report,” explains Bauersfeld. “Then, in the hearing, I act as prosecutor, defense advocate, and judge. I must remain fair and impartial, holding inmates accountable yet keeping their limited due process rights intact.”
Infractions Bauersfeld encounters can be as simple as a refusal to follow orders “all the way up to assaults on an officer and even one inmate beating another to death,” he says. “Over the years, I’ve seen it all. Nothing is ever routine, and every day is dierent.”
On the other hand, explains Bauersfeld, there are strict rules against taking casework beyond the facility’s walls, so his is an 8 a.m. to 4 p.m. job. “That helps me recharge my batteries.”
How did Bauersfeld’s legal training qualify him to be a hearing officer? “I pretty much checked every box when it came to preparing for this career, doing defense, appellate, and prosecutorial work,” he says. “Given my career trajectory, I encourage students to embrace law school for everything it can oer. Pigeon-holing yourself can be a disservice.”
Bauersfeld was on a financial career path at first, working for Morgan Stanley after receiving his undergraduate degree from the University of Notre Dame. That was until a colleague suggested that the law might be a better fit for him. At Syracuse, he enjoyed courses in contracts and business law, and—after the Sept. 11, 2001, terrorist attacks—he embraced national security law, becoming one of the first students to earn a Certificate of Advanced Study in National Security and Counterterrorism.
“Because of the ‘all-in-one’ nature of my current role—prosecutor, advocate, and judge—I’d have to say that everything in law school prepared me,” adds Bauersfeld. “When I write dispositions, for instance, I recall Professor Richard Risman’s legal writing course. I have to remember the importance of audience, although my audience is a prison inmate!”
Bauersfeld adds that he also must be mindful of the appeals process and make a complete record of the hearing and evidence. “So my training in criminal procedure and rules of evidence comes into play.”
After law school, he worked for McMahon & Grow in Rome, NY, practicing corporate and business law, as well as criminal defense work. Bauersfeld subsequently opened his own defense practice in Auburn and acted as an assigned counsel throughout Cayuga County. This work put him into contact—albeit across the table—with the Cayuga County District Attorney, and soon he was working inside the busy DA’s office. “I was there for almost seven years, working on every type of case—financial crimes, drug cases, and felonies—in 26 city, town, and village courts.”
A contact in Auburn encouraged Bauersfeld to apply for the commissioner’s hearing officer job, citing the state’s need for more lawyers to work within the prison system. Today, he is among 16 hearing officers across 52 facilities whose background, experience, and skills are bringing more rigor and integrity to prison discipline.
“We are invested in rehabilitating prisoners, so they must trust that the system is going to work for them,” explains Bauersfeld. “Therefore, prisoners must be treated fairly, their version of the story must be heard, the process must be impartial, and appropriate penalties must be given.”
LIKE SON, LIKE FATHER
According to Nelson Bauersfeld L’14, if he and his son Brian L’04 ever go into practice together, they’ll have to call the firm Bauersfeld & Father. That’s because, in this twist of the typical legacy story, Brian got his degree first, followed by Nelson 10 years later.
Readers who attended Syracuse between 2011 and 2014 will recall Nelson, a retired school administrator who always went to class in a shirt and tie and who helped found the Veterans Issues, Support Initiative, and Outreach Network (VISION).
In a May 2014 Syracuse Post-Standard profile, Nelson recalled that a speech by Notre Dame basketball coach Digger Phelps inspired him “to do something crazy” and “find a way to give back.” That led to his 10-year plan: get a law degree and then use it to provide pro bono assistance for veterans and others.
Nelson received his law degree—Brian hooded his father at graduation—but what about the rest of the plan?
“Since graduating, my wife, Barbara, and I moved to The Villages, a retirement community in central Florida,” says Nelson. There—in addition to typical retirement activities such as playing cards, golfing, and traveling—Nelson helps community members with their legal needs. “I do wills and trusts, advocate for people who believed they have been scammed, help military veterans secure benefits, and represent them in appeals.”
Nelson says his goal was to never make a dollar practicing law— “and I’ve succeeded!” he exclaims. “I’m very satisfied, except when paying of my student loans, but I am paying them off and enjoying my time.”
Says Brian of his father: “He’s living the dream—I’m absolutely proud of him. He’s still the smartest man I know.”
That pride is mutual, says Nelson, although it’s not without a hint of friendly family competition. “My goal at law school was to get a slightly higher GPA than Brian’s, yet he tells me he can’t remember his GPA!”
The Onondaga County courtroom was packed. Standing room only. Voices cracked. Tears flowed. The justices of the appellate division were about to hand down a decision that would make history. As Presiding Justice Gerald Whalen, Appellate Division, Fourth Department, proclaimed: “We are going to right that wrong in the only way we can.”
“That wrong” involved the first African American graduate of Syracuse University’s College of Law. William Herbert Johnson L’1903 excelled in his studies. He passed his bar exam, but he was denied admission to the New York State Bar. “The challenge facing him was the character and !tness part of the bar admission process,” explains Dean Boise. “Admission to the bar required references, and white lawyers were unwilling to sign a statement confirming the good character and fitness of black graduates.”
Hearing the judges speak of such blatant racism and injustice was “overwhelming” for William Johnson’s grandson Tom Johnson, who, together with his brothers Calvin and Donald and cousin Dorothy Jefferson, had submitted affidavits to the court in support of their grandfather’s posthumous admission to the bar. “During his lifetime, lawyers in the community sought his legal opinion on cases,” says Tom Johnson. “If he was good enough to assist them with their cases, why didn’t they have the intestinal fortitude to write those character references he needed to practice?”
Tom Johnson, Don Johnson and Calvin Johnson, grandsons of William Herbert Johnson L’1903, with College of Law Professor Paula Johnson (no relation) at the Onondaga County Courthouse following the ceremony in which William Johnson was admitted posthumously to the New York State Bar.
According to Paula C. Johnson (no relation), Professor of Law and Co-Director of the Cold Case Justice Initiative, William Johnson expressed his disappointment to his family. Professor Johnson writes in a 2005 article in the Syracuse Law Review: “William Johnson once remarked to his grandson Calvin, ‘I may not be able to do this now, but there are others who are going to do these types of things.’”
Those “others” were indeed instrumental in “righting the wrong” more than a century later. Black alumni of the College of Law, members of The Syracuse Black Law Alumni Collective (Syracuse BLAC), petitioned the court for the posthumous admission. The New York Court of Appeals granted the application. “The ceremony held in Onondaga County Court (on Oct. 18) was a historical display of community unity and commitment to justice,” says Felicia Collins Ocumarez L’98, G’98, co-founder of Syracuse BLAC. “We are committed to the Syracuse community and contributing to a positive narrative of hope and new beginnings.”
Though denied admission to the bar more than a century ago, Johnson found ways to use his legal acumen to help others. Though his official job was as a mail room clerk for the New York Fire Insurance Rating Organization, an underwriting firm, he remained active in legal circles, doing research for some of his white classmates. He offered legal guidance informally to many who sought his counsel, was active in the Syracuse community advocating for fair treatment of black residents in housing and financial matters, and helped clear the way for African Americans to be employed in law enforcement and firefighting.
William Johnson persevered. By his death in 1965, at age 90, he was a Syracuse legend who fought to right wrongs in the town he loved. Despite its history of anti-slavery activism and as a stop on the Underground Railroad, Syracuse was not a city where blacks could easily break through into the professional ranks. They worked mostly in manual labor or service industries. Johnson was born in Syracuse in 1875, went to Boston University, served in the Spanish- American War of 1898, and returned home to Syracuse to marry Katherine Simmons. When he got a job working as a clerk in a law firm, his passion for the law was ignited.
Syracuse nurtures a similar passion in Professor Johnson, whose writings and advocacy helped keep the William Johnson story alive. “I do this work as a matter of legal theory,” she explains. “But it is also about uncovering the important history that is here in Syracuse. Harriet Tubman lived her final days nearby in Auburn. Abolitionists did their work here. The suragist movement found a home not far from here in Seneca Falls. There’s a rich history that we must not forget. William Johnson is part of that history as a trailblazer.”
Professor Johnson points to examples of the living legacy left by the trailblazer. The minority bar association of Central New York was named the William Herbert Johnson Bar Association in his honor. The Syracuse University Black Law Students Association (BLSA) presents the William H. Johnson Legacy Award to a distinguished alumnus during Law Alumni Weekend at the Alumni of Color Reception. The College of Law provides to a woman of color in the graduating class an award for outstanding achievement, jointly named for William Johnson and Bessie Seeley L’1903, a suffragist and the only woman in a class of 64 men.
“There’s a rich history that we must not forget. William Johnson is part of that history as a trailblazer.”Professor Paula C. Johnson
Kristian Walker is the graduate who received the 2019 Seeley-Johnson Award. “His perseverance built a foundation for many African American students to pursue their dreams of law school. And the injustice he faced taught us that mastering law school courses is only part of the battle,” Walker says. “He taught us that it is what we do with the knowledge we gained after we leave the halls of the college that creates change.I think honoring William Herbert Johnson will shed light on his very important story and be a step in the right direction of rectifying injustices. I also hope it brings awareness to the fact that it took 116 years to right this wrong, yet in 2019 racial injustices are still very prevalent.”
“The fact is that the legal profession remains one of the least diverse of all professions today,” notes Dean Boise. “We have many more African American students pursuing a law degree, and the number of black associates at law firms has certainly increased. But we are not well- represented at the partner levels of law firms and in leadership roles. I am hoping that by bringing greater awareness to what happened to one of our graduates in 1903, we are shining a spotlight on a problem still facing the graduates of today.”
In the days following William Herbert Johnson’s posthumous admission to the bar, his grandsons reflected on what had become far more than a family campaign to give their grandfather the validation he so deserved.
“I was talking with my brother Don and he told me, ‘Tom, do you realize that we were a part of history being made?’” Tom Johnson says.
Their grandfather had, indeed, blazed a trail for others. His descendants, with the support of so many others, had made that trail easier to follow.
