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.
Student attorneys enroll in one of the College’s eight law clinic courses to practice law and represent clients for the first time in their legal careers. They look forward to face- to-face meetings with clients and advocating for them in court and with administrative agencies, doing so in a supportive environment supervised by faculty members while brainstorming on cases with their law clinic colleagues.
In spring 2020, when the coronavirus pandemic wreaked havoc on our daily lives, the impact on the practice of law and with it clinical legal education was no exception. Teaching and learning throughout the law school pivoted to online after spring break. So too did our practice of law and the representation of clinic clients. Although the experience the student attorneys received was not at all what they thought it would be, it was powerful.
As disruptive as the virus was, it was also an incredibly teachable moment. Law clinic faculty rose to the challenge of teaching our students how to lawyer in a time of a grave crisis, how to exercise good judgment in the face of uncertainty, and how to utilize skills in the remote practice of law that some faculty were only just learning themselves.
Teaching classes remotely was just the tip of the proverbial iceberg for law clinic faculty. Supervising students on actual cases with real clients was the ultimate challenge. We were not alone: Lawyers throughout the country—if not the world—were learning how to work and represent clients remotely. Our student attorneys now continue in summer session, building on their experience in real time during a national crisis.
Importantly, during this pandemic, students have had to overcome the obstacles faced by people who are historically disadvantaged in our society. Many of our clients do not have smartphones, let alone a computer, and cannot access Zoom or other remote communication applications. Some courts and administrative agencies were closed except for emergency legal matters. With the guidance of supervising faculty, our student attorneys rose to the occasion with creative problem-solving in every aspect of our legal representation.
It has been a scary, stressful, and challenging time for most people throughout our country. In the best of times, lawyers must put their own self-interest aside and get out of their own way to be effective advocates for their clients. In this time of a global pandemic—when civil and legal rights are of utmost importance— our ability to help others with our legal skills and effectively represent clients is paramount. In our clinics, student attorneys have continued without interruption to receive an unparalleled legal education while providing critical legal representation to clients. They will call upon the skills and experiences they have gained here and now throughout their legal careers. I am very proud of them.
Deborah Kenn Associate Dean of Clinical and Experiential Education Professor of Law Director, Office of Clinical Legal Education
Children’s Rights & Family Law Clinic
Each year, the work of the Children’s Rights & Family Law Clinic (CRC) is characterized by select themes. This past academic year, these themes included adoption issues, custody, and child support matters as well as providing comprehensive legal representation to clients also represented by the Veterans Legal Clinic.
The year began with the continuing representation of a mother needing legal assistance obtaining health insurance for her children who had been continuously in her care and custody. The client had been covering her children through Medicaid but subsequently learned that two of her children having specialized medical needs had their health coverage terminated after their father, who had been abusive to the client, had enrolled them in an out-of-state plan that they would never be able to use. This resulted in the children not being able to obtain medically necessary services. After many months of discovery, research, communications with state agencies, and filing extensive pleadings with the court, the Clinic was able to obtain this necessary coverage.
CRC also participated in its first adult adoption matter. Specifically, CRC retained a client for an adult adoption where the client wished to preserve his sense of family with the only family he has ever known. The client wished to have the same relationship reflected legally. We continue our work with the clients.
Criminal Defense Clinic
Student attorneys in the Criminal Defense Clinic (CDC) represented more than two dozen people charged with misdemeanors or violations in Syracuse City Court during the 2019-2020 academic year. In the fall semester, Nathan Wagner L’20 and rising 3L KaylaWheeler successfully defended their client by invoking a provision in the criminal code that allowed their client to avoid conviction by taking an alcohol training course.
Furthermore, Taylor Carter-Disanto L’20 and rising 3Ls Michaela Macini and Matt Cohan had charges against their client dismissed on the eve of trial by arguing that the trial would violate the speedy trial rule due to the prosecution failing to comply with the new criminal discovery rules. CDC students were some of the first attorneys in Onondaga County to successfully get a charge dismissed under the 2020 discovery amendments.
Disability Rights Clinic
Disability Rights Clinic (DRC) Director Michael Schwartz is the only culturally Deaf law professor in the United States. While there are a number of law professors with diminished hearing, none are fluent in American Sign Language nor identify as belonging to the Deaf community of the United States and overseas.
In collaboration with Schwartz, DRC students Connor Haken L’20 and Philip M. Lee L’20 successfully petitioned the New York State Division of Human Rights to allow student attorneys, practicing under the guidance of a licensed lawyer, to represent clients in a public hearing.
In addition, the DRC successfully negotiated a settlement allowing a Deaf warehouse employee of a national retail chain to drive a forklift on the job; DRC students edited a Korean Disabled People’s Organization’s shadow report to the UN under the UN Convention on the Rights of Persons with Disabilities, and students have been engaged in ongoing negotiation with the New York State Department of Corrections and Community Supervision to install a videophone for Deaf and hard of hearing inmates in state custody.
Transactional Law Clinic
Transactional Law Clinic student attorneys and Director Jessica Murray concluded the Clinic’s inaugural year by assisting clients affected in various ways by the COVID-19 crisis. In one matter, a not-for-profit client wondered if it could shift its organizational focus to COVID-19 relief, from its previous mission. This inquiry led to review by the Clinic of the organization’s governance documents, various state and federal laws, as well as practical considerations.
Several clients approached the Clinic about the interpretation of agreements and how they would be affected by the pandemic. Not surprisingly, among other matters, the clinic examined the meaning and applicability of force majeure clauses. “It was very rewarding for student attorneys to provide helpful legal advice related to these unprecedented times,” says Murray.
Betty and Michael D. Wohl Veterans Legal Clinic
In November, Beth G. Kubala became Director of the Betty and Michael D. Wohl VeteransLegal Clinic (VLC). Kubala was most recently Senior Director for Strategy and Performance at Syracuse University’s Institute for Veterans and Military Families (IVMF). Before joining the University, Kubala retired from the US Army as Lieutenant Colonel following 22 years of active service.
Among VLC’s work in 2019-2020, rising 3L Madeline Cardona presented before a Veterans Law Judge at the Board of Veterans’ Appeal in Washington, DC. Cardona offered opening and closing arguments, interviewed three witnesses, and provided testimony and evidence in support of a disability benefits issue.
In April, Jonathan Pilat L’20 submitted public comment on a proposed legislative change by the US Department of Veterans Affairs, to amend the VA regulations that limit student attorney access to electronic records kept by the Veterans Benefits Administration. Pilat’s comment voiced dissent for this change and communicated VLC concerns. Pilat also advocated for continued access to veterans benefits records under the current regulation or under an amendment that would enable clinic students to qualify for read-only access.
Leading up to mid-March 2020, the Travis H.D. Lewin Advocacy Honor Society was on a significant roll through regional and national competitions, and the intracollegiate mainstays delivered our students their fair share of competitive opportunities to hone their courtroom skills.
By then, teams and individuals had attained numerous wins, high placements, and personal accolades, with several final competitions yet to go, when the COVID-19 pandemic effectively brought the season to a premature end, including scheduled trips to the National Trial Competition, the American Association of Justice Competition, the Williams Institute Moot Court, and the Uvaldo Herrera Moot Court Competition.
Two intracollegiate competitions were impacted by COVID-19: the Entertainment and Sports Law Negotiation Competition was canceled, while the Mackenzie Hughes LLP Edmund H. Lewis Appellate Advocacy Competition changed its format.
With the written brief portion of Mackenzie Hughes already complete, Competition Director JuliaWingfieldL’20 and Appellate Division Director Chanan Brown L’20 creatively turned the oral advocacy tournament into a writing competition.
Earlier in the academic year, students and advisors hosted three intercollegiate competitions—the ABA Regional Negotiation Competition, the National Trial Competition regionals, and the inaugural Syracuse National Trial Competition— furthering the College of Law’s reputation as a hospitable, well-organized host.
“I join our students in feeling that there’s unfinished business due to COVID-19, but I am very proud of their accomplishments this year nonetheless,” says Professor Todd Berger, Faculty Director of Advocacy Programs. “The students delivered great results in the competitions, and many pulled double duty, contributing countless hours behind the scenes as we successfully hosted three competitions. The pandemic required quick adjustments, and some competitions, such as the prestigious Top Gun, were held online. All in all, it was a great learning experience.”
“The students delivered great results in the competitions and many pulled double duty contributing countless hours behind the scenes.” – Todd Berger
U.S. News Ranks Advocacy Program at #15
The College of Law’s advocacy program was ranked #15 in the nation in the U.S. News & World Report 2021 ranking of law school specialty programs, tied with three other schools. This ranking is a significant jump from Syracuse’s #27 ranking the previous year. “U.S. News voters—influential faculty from around the nation—are noticing our continued focus on this program, as well as the excellent results earned by our students,” says Dean Boise.
College of Law Holds Inaugural Syracuse National Trial Competition
In early October 2019, 11 trial advocacy teams from across the country descended upon Syracuse, joining our advocacy team to compete in the inaugural Syracuse National Trial Competition (SNTC). After several rounds of grueling competition, Loyola Law School Los Angeles prevailed over Samford University Cumberland School of Law in the first-ever final. Student directors rising 3Ls John Mercurio and Troy Parker, as well as faculty co- directors Professor Todd Berger and Joanne Van Dyke L’87, collaborated on this event that further raised the College’s national profile as a top trial advocacy school. Note: Any entries with numerals correspond to the photos on the right.
Celebratory Banquet Goes Virtual COVID-19 did not stand in the way of the annual Travis H.D. Lewin Advocacy HonorSociety (AHS) banquet. Dozens of students, faculty, staff, alumni, and others joined together virtually to celebrate a successful year and bestow award honors and scholarships that are a part of the AHS tradition.
2020 Award and Scholarship Winners
Ralph E. Kharas Award: Joseph Mallek L’20 AHS Executive Director Award: Rising 3Ls Troy Parker and John Mercurio Richard Risman Appellate Advocacy Award: Aubre Dean L’20 Emil M. Rossi L’72 Scholarship Award: Rising 3L Joseph Celotto Models of Excellence in Advocacy Award, given in honor of Lisa Peebles L’92: Rising 3L Allison Kowalczyk 2020 Lee S. Michaels Advocate: Rising 3L Joseph Tantillo CourtCall Scholarship Award: Chanan Brown L’20 and Kevin Risch L’20 The Order of Barristers: Ariel Blanco L’20, Aubre Dean L’20, Davida M. Hawkes L’20, Adam Leydig L’20, Joseph Mallek L’20, Richard Miller L’20, Jill Tompkins L’20, Julia Wingfield L’20, and William Wolf L’20
Highlights from the 2019-2020 Intercollegiate Competition
Alternative Dispute Resolution Division American Bar Association Arbitration Competition: William Wolfe L’20 and rising 3Ls Nabil Akl, Savraj Gill, and Frances Rivera Reyes advanced to the quarterfinals of the regional, finishing sixth.
American Bar Association Negotiation Competition The College of Law hosted a regional round with 20 teams competing. Rising 3Ls Jacqueline Chilbert and Allison Kowalczyk advanced to the national round, with Professor Daniel Cantone L’ 81 coaching all teams.
Appellate Advocacy Division The National Moot Court Competition: Aubre Dean L’20 and Joseph Tantillo L’20 won their regional competition, with Tantillo being named Best Oralist in the final round. Coached by Professor Emily Brown L’09 and David Katz L’17, the team finished in the top 16 at nationals.
American Bar Association National Appellate Advocacy Competition: Natalie Switzer Maier L’20 and rising 3Ls Carly Cazer and Clee Malfitano advanced to the octofinals. National Tax Moot Court Competition:Jeanine Cryan L’20 and Carly Rolph L’20 advanced to the quarterfinals.
Trial Advocacy Division National Black Law Students Association Constance Baker Motley Mock Trial Competition:Davida M. Hawkes L’20, William Wolfe L’20, and rising 3Ls Ken Knight and Sharon Otasowie advanced to the quarterfinals at the national round after winning their regional. Wolfe was named Best Advocate at the nationals. John Boyd L’16, Alphonse Williams L’17, and Stephanie Martin-Thom L’18 coached the team.
The Tournament of Champions:Ariel Blanco L’20, Adam Leydig L’20, and rising 3Ls LisaCole and Christy O’Neil advanced to the semifinals, and Leydig was named Best Advocate for the preliminary rounds. Joanne Van Dyke L’87, Joseph Cote L’87, Justin St. Louis L’17, Dennis Scanlon L’19, and Professor Emeritus Travis H.D. Lewin were coaches. Buffalo-Niagara Mock Trial Competition: Davida Hawkes L’20, Richard Miller L’20, and rising 3Ls Joe Celotto, Chris Doak, and Troy Parker advanced to the semifinals, coached by Jeffrey Leibo L’03, Jennifer Pratt L’17, Peter Hakes, and Professor Emeritus Lewin. Syracuse National Trial Competition: Kevin Risch L’20 and rising 3Ls Alex Eaton, Tyler Jefferies, and Evan Pfeifer advanced to the quarterfinal round
National Trial Competition: Two teams advanced to nationals from the regionals held in Syracuse—Adam Leydig L’20 and rising 3L Joe Celotto on one team, and Ariel Blanco L’20 and rising 3Ls Lisa Cole and Christy O’Neil on the other. Leydig won Best Open for the preliminary rounds, while Celotto won Best Advocate for the final round. The College also won the Tiffany Cup for second year in a row, and is now most winningest advocacy program across New York State. The coaches were Joanne Van Dyke L’87, Jenny Pratt L’18, and Peter Hakes.
National Online Trial Advocacy Competition: At an online competition created to fill the void left by COVID-19 cancellations, rising 3Ls Lisa Cole and Christy O’Neil represented Syracuse, with O’Neil advancing to the semifinals.
Top Gun National Mock Trial Competition: Adam Leydig L’20 placed fifth, with rising 3L Tyler Jefferies his co-chair. This is the fourth time in five years that this prestigious tourney has invited Syracuse.
Highlights from the 2019-2020 Intracollegiate Competitions
42nd Annual Lionel O. Grossman Trial Competition: Davida M. Hawkes L’20 and RichardMiller L’20 prevailed over Alecia Frye L’20 and Troy Gayle L’20 in the Grossman Trial Competition in October 2019, Frye receiving the Frank H. Armani L’56 Advocacy Award for the best individual advocate.
The Hon. Glenn T. Suddaby L’85, Chief US District Court Judge, Northern District of New York, presided over the final round, joined by evaluators the Hon. Brenda K. Sannes, US District Judge for the Northern District of New York; the Hon. Thérèse Wiley Dancks L’91, US Magistrate Judge for the Northern District of New York; Professor Emeritus Lewin; and Ed Menkin L’77.
8th Annual Bond, Schoeneck & King Alternative Dispute Resolution Competition:AndrewWeekes L’20 and rising 3L Kenneth D. Knight prevailed over Sara Pielsticker L’20 and Ju-Juanna Perkins L’20 in the BSK ADR Competition. Perkins was named the Best Advocate for the final round.
Final round judges were Judge Dancks; Brian Butler L’96, Member, Bond, Schoeneck & King PLLC; and James L. Sonneborn, Member and Head of the Litigation Department, Bousquet Holstein PLLC.
10th Annual Hancock Estabrook LLP 1L Oral Advocacy Competition: Rising 2L BradyTurner prevailed over fellow rising 2L Christopher Martz in the Hancock Estabrook Oral Advocacy Competition. Final round judges were Judge Sannes; the Hon. Mae A. D’Agostino L’80, US District Judge for the Northern District of New York; Judge Dancks; Dean Boise, and James P. Young, Esq., Partner, Hancock Estabrook LLP.
Mackenzie Hughes LLP Edmund H. Lewis Appellate Advocacy Competition: In-person arguments were canceled due to COVID-19, and the Mackenzie Hughes Appellate Advocacy Competition became a written brief competition, won by rising 3Ls JosephTantillo and Thomas Finnigan.
Innovation Law Center Students & Faculty Help Hoplite Power Commercialize Its On-the-Go Smartphone Chargers
It’s a frustration many can relate to. You’re on the go with your smartphone, juggling business and personal calls and texts, when you suddenly realize you’re low on power. No worries. Just dip into a friendly café with your charger and power up while you are getting coffee’d up. So you reach into your bag for the charging cable …
Of course, it’s not there. Enter Hoplite Power, a Long Island, NY-based startup company that has created a remarkable and convenient solution for those inevitable times when you leave home without your charger or when there are no power outlets nearby.
Assisted by students and faculty at the New York State Science and Technology Law Center (NYSSTLC)—part of the Innovation Law Center (ILC)—Hoplite Power has developed a smartphone charge-sharing system. “Any customer who is low on battery can go to one of our kiosks in network and rent a portable battery pack to charge their phone on the go,” says Co-Founder and Chief Technology Officer Nikolas Schreiber, adding that the kiosks operate in a similar way to a RedBox DVD dispenser or CitiBike bike rental kiosk.
Each kiosk—called a Hoplite Hub—stores, dispenses, re- accepts, and automatically recharges Hoplites, which are small, ergonomically designed, universal battery packs for smartphones. These packs can be rented from and returned to any Hoplite Hub in the network.
“This means the customer can charge when and where they need it, not having to remember to bring a battery or be tied down to an outlet. This system is perfect for high-density and high-value areas such as sports stadiums, live venues, and convention centers,” notes Schreiber. Schreiber discussed how NYSSTLC— and specifically rising 3L Viviana Bro and Adjunct Professor Dominick Danna ’67, ’71—have helped Hoplite Power commercialize its novel technology:
How did you discover the NYSSTLC/Innovation Law Center and the services it provides businesses and entrepreneurs? We are working with NYDesigns Incubator, Futureworks, FuzeHub, the Industry Trade Advisory Committee, the Medical Technology Enterprise Consortium, the Manufacturing and Technology Resource Consortium, and finally the Clean Energy Business Incubator Program (CEBIP). It was CEBIP that made the direct introduction to the Innovation Law Center and NYSSTLC.
What assistance has Hoplite Power received from NYSSTLC? We were able to consult with NYSSTLC on a full intellectual property (IP) strategy, including prior art, freedom to operate, and patentability.
How useful has the NYSSTLC research and proprietary report been for your commercialization process? It was incredibly assuring to look through some patents and understand that we did have freedom to operate where before we had some concerns. Not just that, we learned that there might be specific aspects of our technology—especially given a number of unique mechanisms—that could be patented, where, again, we had had doubts.
Now that you have engaged NYSSTLC, what are the next steps for Hoplite Power? Following the launch of our version two pilot, we plan to file additional IP protections, including both design and utility patents. A strong IP and a functioning pilot will allow us to raise more capital.
What advice do you have for an entrepreneur looking to commercialize a new technology, based on your experiences so far?There are so many ways to go with this, but I think one thing that gets lost is proving the product market fit. Your new technology might be cool, but if it does not serve a market need, then it is not a company.
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.
“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.
