No Wheelchair Users Allowed in a Miami Beach Condo!

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Litigation: Siler v. Abbott House Condo

By: Matthew Dietz

Rachel Siler was looking forward to moving to Miami Beach in April 2016.  Rachel went to art school in Chicago and after graduating from college she started working in the Independent Living and Disability Rights Movements. Aside from this passion she has also represented the disability community within the Occupy and Anti-war Movements. When she isn’t fighting for social justice she enjoys reading, antiquing and designing.

 For the past thirteen years, she had lived in cold and windy Chicago working at Chicago’s Access Living, assisting people with disabilities and a coordinator of Chicago ADAPT, an organization that has dedicated disability rights activists that engage in nonviolent direct action, including civil disobedience, to assure the civil and human rights of people with disabilities to live in freedom.  She found a job as an independent living specialist at the Center for Independent Living of South Florida and was ready to move to sunny Miami Beach.

As a wheelchair user herself, Rachel knew what she needed in order to live independently in Miami Beach.  She needed to live near to public transportation, a safe surrounding area, a building with an elevator, a residence that was affordable and accessible, and adequate green space so that her service animal, Minty could be walked.   Before moving down to Florida, she visited the area and hired a real estate agent. During her visit, she looked at eight residences. However, none these residences met her needs. When she returned home, the agent sent Rachel information about a condominium on Miami Beach at Abbot House Condominum, and it was perfect – one of the largest homes that she ever lived in.

She entered in to the lease with the owner of the condominium, and was told that a condition of moving in was physically meeting with the condominium association board screening committee and receiving written approval.  This was only supposed to be a formality.  So, Rachel spoke with the property manager, received permission to move her belongings in on May 21st, and packed and started the trek across the United States with her mother and a friend.

When Rachel came to Miami on May 20th, with her personal assistant, she did not get the reception that she was expecting.  The association manager met her and was shocked, he told her that she did not know that she had a “condition”.  She then went to a meeting with two of the board members of the Condominium.

Instead of speaking to Rachel, the board member started asking questions of Rachel’s assistant, as if Rachel could not speak for herself –

  • “Do you live with her?”
  • “Will you always be with her?”
  • “Do you sleep with her?”

“No, she can speak for herself,”  said the assistant.  Rachel continued, and attempted to explain her existence, she explained that she works forty hours per week and she schedules personal assistants around that work schedule.  Notwithstanding the humiliation at having to explain the fact that she lives and works like any other person, the screening committee than attempted to try to convince Rachel why she should not live at Abbot House.

  • The Board of Directors does not want to be held liable if something were to happen to you.
  • The building only has one elevator, how are you going to work if the elevator broke?
  • Fire fighters and paramedics do not want to climb stairs to rescue an elderly resident who was unable to evacuate due to a fire. The board did not have the funds to pay for modifications to make the building accessible.

Rachel told the Board that she would pay for any modifications to her own residence and the buildings elements are accessible to her and she did not need any modifications.  When they could not dissuade her, the association requested that she sign a waiver, releasing the condominium from all liability from any injuries.  To live in her home, she agreed, and then was provided the keys to the public areas, including the exterior door with the wheelchair ramp.

But before she could move in, the property manager told her that, the board that approved her tenancy to her face, now decided to decline her rental request, and followed up with an email:

This is to inform you that Ms. Rachel D. Siler, as a prospective tenant of Unit 4A, was denied by the Board of Abbott House Condo under the powers and duties of the Bylaws of the Association (See two (2) pages of the attachment).

By the understanding of the Board of Directors of ABBOTT HOUSE, INC. A CONDOMINIUM, the building has not the appropriate accessibility for people with disabilities conditions for the following reasons:

– The access to the building and other common areas as accessible route are not appropriate. We have not physical access like route, curb ramps, entrances and loading areas,

– There is not an appropriate parking space for a disable people. All of them are narrows,

– There is not a restroom and bathroom accommodation, etc.

All of the above are part of the main considerations of the Americans with Disabilities Act (ADA). Therefore, the Association cannot be responsible for any future claim requested by Ms. Siler and any other officer of the Miami-Dade County

Stranded in Miami Beach, with no home, Rachel Siler, an independent living specialist, was in a nightmare that she would usually be the person who these issues would be reported to.  But in a new city, she did not dawn at south beachknow where to turn.  She reached out to Disability Independence Group.

On Monday, May 23, Rachel Siler, with the assistance of her family and her personal assistant, decided to move into her condominium in spite of Abbot House refusal to approve her lease in spite of their denial.  Until a lawsuit was filed, Rachel and her service animal were harassed and attempts were made to block her and her personal assistant from the property.

It is unlawful to deny a person housing based upon insurance liability concerns. Historically, people with disabilities have been stereotyped in many different ways. Some of the stereotypes used to label people with disabilities as incapable of living independently, having a job, having a social and sex life and enjoying their life to the fullest.

The most common barriers to persons with disabilities are not physical barriers, but the attitudinal barriers that lead to this type of discrimination.  The Fair Housing Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. This prohibition is both in housing, under the Fair Housing Act and with other accommodations under the Americans with Disabilities Act.  As discussed in the comments Americans with Disabilities Act, one “cannot refuse to serve a person with a disability because its insurance company conditions coverage or rates on the absence of persons with disabilities. This is a frequent basis of exclusion from a variety of community activities and is prohibited by this part.” See 28 C.F.R. § 36.202.

Turns out that the least of Abbot House Condominium’s worries should have been whether Rachel Siler would not be able to get around in her wheelchair and would injure herself. Maybe instead of assuming she was an invalid who sleeps with her personal assistant, the Condominium Board should have started with the premise that she had a job, a life, and a passion for helping others.  The real liability was the failure to acknowledge Rachel Siler as the die-hard disability advocate who works to help others destroy attitudinal barriers and harmful stereotypes.

 

Benefits from SSA for People with Disabilities

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The Social Security and Supplemental Security Income disability programs are the largest of several Federal programs that provide assistance to people with disabilities. While these two programs are different in many ways, both are administered by the Social Security Administration and only individuals who have a disability and meet medical criteria may qualify for benefits under either program.

Social Security Disability Insurance or Title II, Disability Benefits SSDI: pays benefits to people with disabilities and certain members of your family if the beneficiary is “insured,” meaning that he/she worked long enough and paid Social Security taxes.

Supplemental Security Income SSI pays benefits to people with disabilities based on financial need.

Comparison of SSI and Title II Disability Benefits

SSI:

  • Welfare program funded by federal tax dollars, not SSA trust fund
  • Limits on earned income, unearned income & resources
  • Comes with Medicaid

Title II Disability or SSDI

  • Entitlement program based upon insured status funded by SSA trust fund (SSDI, CDB, DWB)
  • No limits on unearned income or resources – just earned income
  • Comes with Medicare

 

Types of Benefits

Retired worker and auxiliary beneficiaries: Payment for these benefits is made from the Old-Age and Survivors Insurance Trust Fund.

  • Retired worker—beneficiary who worked in covered employment long enough to be insured and who is at least 62 years old (benefits equal to the “primary insurance amount” are payable at the normal retirement age; maximum benefits are payable at age 70)
  • Spouse of retired worker—must either (1) have a child under age 16 or a disabled child in his or her care, or (2) be at least 62 years old; applies also to divorced spouse if the marriage lasted at least 10 years
  • Child of retired worker—see 3 types of child benefits below

Survivor beneficiaries Payment for these benefits is also made from the Old-Age and Survivors Insurance Trust Fund.

  • Child of deceased worker—see 3 types of child benefits below
  • Aged widow(er)—must be at least 60 years old
  • Young widow(er)—must have a child under age 16 or a disabled child in his or her care
  • Disabled widow(er) DWB—must be disabled and be at least 50 years old (converted to aged widow(er) upon attainment of age 65)
  • Parent of deceased worker—must have been dependent on worker and be at least 62 years old

Disabled worker and auxiliary beneficiaries:  Benefits are paid from the Disability Insurance Trust Fund.

  • Disabled worker—beneficiary who worked in covered employment long enough to be insured and who had been working recently in covered employment prior to disability onset
  • Spouse of disabled worker—must either (1) have a child under age 16 or a disabled child in his or her care, or (2) be at least 62 years old; applies also to divorced spouse if the marriage lasted at least 10 years
  • Child of disabled worker—see 3 types of child benefits below

  Types of children:

  • Minor child (under age 18)
  • Adult disabled before the age of 22
  • High school student under age 19

Resources:

http://www.ssa.gov/oact/progdata/types.html

 

 

Work Incentives Protecting Health Coverage for People with Disabilities

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by Lesley Lopez                      

Many SSA beneficiaries are afraid of losing their health insurance coverage because of employment, however, SSA provides protections to SSA beneficiaries to be able to work and keep their Medicare or Medicaid.

Extended Medicare Coverage for Working People with Disabilities. Beneficiaries receiving SSDI

As long as your disabling condition still meets our rules, you can keep your Medicare coverage for at least 8 ½ years after you return to work. (The 8 ½ years includes your nine month trial work Period)

Your Medicare hospital insurance (Part A) coverage is premium-free. Your Medicare medical insurance (Part B) coverage will also continue. You or a third party (if applicable) will continue to pay for Part B. If your Social Security Disability Insurance cash benefits stop due to your work, you or a third party (if applicable) will be billed every 3 months for your medical insurance premiums. If you are receiving cash benefits, your medical insurance premiums will be deducted monthly from your check.

Continued Medicaid Eligibility (Section 1619(B))

For beneficiaries receiving SSI

One of the biggest concerns SSI beneficiaries have about going to work is the possibility of losing Medicaid coverage. Section 1619(b) of the Social Security Act provides some protection for these beneficiaries. To qualify for continuing Medicaid coverage, a person must:

  • Have been eligible for an SSI cash payment for at least 1 month;
  • Still meet the disability requirement; and
  • Still meet all other non-disability SSI requirements; and
  • Need Medicaid benefits to continue to work; and
  • Have gross earnings that are insufficient to replace SSI, Medicaid and publicly funded attendant care services.

This means that SSI beneficiaries who have earnings too high for a SSI cash payment may be eligible for Medicaid if they meet the above requirements. SSA uses a threshold amount to measure whether a person’s earnings are high enough to replace his/her SSI and Medicaid benefits. This threshold is based on the:

  • amount of earnings which would cause SSI cash payments to stop in the person’s State; and
  • Average Medicaid expenses in that State.

If an SSI beneficiary has gross earnings higher than the threshold amount for his/her State, SSA can figure an individual threshold amount if that person has:

The state of Florida 2016 annual threshold amounts for disabled and blind beneficiaries is $30,566

Other health care options:

Market Place or Affordable Care Act

A service that helps people shop for and enroll in affordable health insurance. The federal government operates the Marketplace, available at HealthCare.gov, for most states. Some states run their own Marketplaces.

The Health Insurance Marketplace (also known as the “Marketplace” or “exchange”) provides health plan shopping and enrollment services through websites, call centers, and in-person help.

When you apply for individual and family coverage through the Marketplace, you’ll provide income and household information. You’ll find out if you qualify for:

  • Premium tax credits and other savings that make insurance more affordable
  • Coverage through the Medicaid and Children’s Health Insurance Program (CHIP) in your state

On HealthCare.gov, you may be asked to select your state or enter your ZIP code. If you live in a state that runs its own Marketplace, we’ll send you to your state’s Marketplace website.

 Medicaid Share of Cost or Medically Needy

The Department of Children and Families (DCF) determines eligibility for the Medically Needy Program. It may also be referred to as the “Share of Cost” program. The Medically Needy Program assists individuals who would qualify for Medicaid except for having income that is too high. Individuals enrolled in Medically Needy may have a monthly “share of cost,” which is similar to an insurance deductible. The share of cost is determined by household size and gross monthly income. When there are changes to the household size and income, the share of cost amount may change.

Some examples of medical expenses that can be used to meet the “share of cost”

  • Unpaid medical bills owed that have not been used to meet the share of cost before.
  • Medical bills the individual paid within the last three months.
  • Health insurance premiums
  • Medical bills that will not be paid by health insurance or any other source.
  • Co-pays for medical bills.
  • Medical services prescribed by a doctor.
  • Transportation by ambulance, bus or taxi to get medical care.

For more information about the Medicaid share of cost please visit http://www.myflorida.com/accessflorida/

 Community Health clinics (CHI)

Community Health of South Florida Inc. is a non-profit health care organization providing affordable quality primary and behavioral health care services to the residents of rapidly growing South Florida. CHI operates 11 state-of-the-art primary care centers and 31 school-based programs. All centers offer quality comprehensive primary and behavioral health care services. Our physicians are board certified or board eligible. Additionally, CHI is accredited by the Joint Commission and is accredited as a Level 3 Patient-Centered Medical Home by the National Committee for Quality Assurance (NCQA). CHI offers a “one-stop-shop” model where the organization and delivery of quality services are seamless, affordable, accessible and culturally sensitive.

For more information visit the website http://www.chisouthfl.org/

If you are a SSI or SSDI beneficiary and needs an individualized analysis of your situation please contact the Community Work Incentives Coordinator or benefits Planner in your area.  Please check the SSA Website for more details: http://choosework.net.

Work Incentives Protecting Health Coverage for PWD

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By: Lesly Lopez

Extended Medicare Coverage

For Working People with Disabilities

As long as your disabling condition still meets our rules, you can keep your Medicare coverage for at least 8 ½ years after you return to work. The 8 ½ years includes your nine month trial work Period.

Your Medicare hospital insurance (Part A) coverage is premium-free. Your Medicare medical insurance (Part B) coverage will also continue. You or a third party (if applicable) will continue to pay for Part B. If your Social Security Disability Insurance cash benefits stop due to your work, you or a third party (if applicable) will be billed every 3 months for your medical insurance premiums. If you are receiving cash benefits, your medical insurance premiums will be deducted monthly from your check.

Continued Medicaid Eligibility (Section 1619(B))

For beneficiaries receiving SSI

One of the biggest concerns SSI beneficiaries have about going to work is the possibility of losing Medicaid coverage. Section 1619(b) of the Social Security Act provides some protection for these beneficiaries. To qualify for continuing Medicaid coverage, a person must:

  • Have been eligible for an SSI cash payment for at least 1 month;
  • Still meet the disability requirement; and
  • Still meet all other non-disability SSI requirements; and
  • Need Medicaid benefits to continue to work; and
  • Have gross earnings that are insufficient to replace SSI, Medicaid and publicly funded attendant care services.

This means that SSI beneficiaries who have earnings too high for an SSI cash payment may be eligible for Medicaid if they meet the above requirements. SSA uses a threshold amount to measure whether a person’s earnings are high enough to replace his/her SSI and Medicaid benefits. This threshold is based on the:

  • amount of earnings which would cause SSI cash payments to stop in the person’s state; and
  • Average Medicaid expenses in that state.

If an SSI beneficiary has gross earnings higher than the threshold amount for his/her state, SSA can figure an individual threshold amount if that person has:

The state of Florida 2016 annual threshold amounts for disabled and blind beneficiaries is $30,566.

 Other Health Insurance Options for People with Disabilities

Medicaid Share of Cost or medically needy from Department of Children and Families(DCF)

In Florida, the Medicaid Share of Cost program is a type of health insurance for the medically needy. These are people who make too much money to qualify for regular Medicaid, but not enough money to pay for their healthcare needs. They meet all of the standard Medicaid eligibility requirements except the income requirement.

The day your healthcare expenses for the month exceed your share of cost, your Medicaid coverage begins. From that day until the end of the month, you have full Medicaid coverage.  You don’t actually have to pay the healthcare expenses used to reach your share of cost. You just have to owe that much. When Medicaid coverage begins, not only does Medicaid pay for your healthcare expenses for the rest of that month, it also pays for the expenses used to meet your share of cost that month. If you choose to pay those expenses yourself, they’ll still count toward meeting your share of cost, but you won’t be reimbursed by Medicaid for what you’ve paid.  To apply or for more information visit www.myflorida.com/accessflorida.

Affordable Care Act (ObamaCare) through? the Market Place

The Affordable Care Act (ACA) was signed into law on March 23, 2010. Beginning Jan. 1, 2014, the law requires all Americans to obtain health care coverage through an employer, an individual health plan or programs such as Medicare, Medicaid, or Children’s Health Insurance Program (Florida KidCare) unless they meet an exemption. Individuals who do not meet an exemption and fail to obtain coverage may be subject to a tax assessment.

On Oct. 1, 2013, the federal government opened the Marketplace where individuals can compare and shop for health care coverage. Each year an open enrollment period will take place for individuals who are seeking Marketplace coverage. Medicaid and Florida KidCare enrollment takes place year-round. If a person applies at the Marketplace and is found potentially eligible for Medicaid or Florida KidCare, their application will be sent to the appropriate agency for processing. The ACA also provides cost sharing and tax credits to assist low-income qualified individuals in purchasing health insurance through the Marketplace.

 

  • Individuals seeking more information about services offered through the Marketplace may contact the Federal Call Center at 1-800-318-2596, Deaf and Hard of Hearing TTY 1-855-889-4325, or go to gov.

 

Community Health Centers like CHI (Community Health of South Florida Inc.)

CHI is a nonprofit health care organization providing affordable quality primary and behavioral health care services to the residents of rapidly-growing South Florida. CHI operates 11 state-of-the-art primary care centers and 31 school-based programs. All centers offer quality comprehensive primary and behavioral health care services. Our physicians are board certified or board eligible. Additionally, CHI is accredited by the Joint Commission and is accredited as a Level 3 Patient-Centered Medical Home by the National Committee for Quality Assurance (NCQA). CHI offers a “one-stop-shop” model where the organization and delivery of quality services are seamless, affordable, accessible and culturally sensitive.  For more information visit their website: http://www.chisouthfl.org/about-us/.

If you are an SSI or SSDI beneficiary and need an individualized analysis of your situation please contact the Community Work Incentives Coordinator or benefits planner in your area.  Please check the SSA Website for more details: http://choosework.net.

Annual Family Cafe Cooks Up Feast of Fun and Facts

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By: Andrew Sagona

The Family Café is a free conference for Floridians of all ages with disabilities and their families to learn about the latest developments in the Florida disability community and to attend the annual Florida “Governor’s Summit on Disabilities.” I have been attending Family Café for over ten years, and I still feel the same sense of wonder and excitement now as I did at my first Café.

A group of 10 people sit around a large table and most of them smile at the camera.This is in part because the atmosphere is fun, warm, friendly, and inclusive. There is always something fun to do for everyone and there are new and interesting things to learn at the Café, whether it is information on disability advocacy, an invention that helps people with disabilities, or a law that fights discrimination.

 

However, the main reason for my wonder and excitement – my favorite part of attending Family Café – is getting to meet new friends and see old friends again. Many of the people at Café attend the conference every year, the result being that you begin to see familiar faces at each conference. For some, like myself, Family Café serves as an annual family reunion of sorts. After attending the conference even once, you make some very close friends – to the point that they become your second family. But because of time and distance restrictions, we are unable to see each other at any other time of the year. So when the three days of Family Café rolls around each year, there is a great deal of anticipation, happiness, and joy when you see your “family” again.

 

A banner hangs from inside a multiple-story building that has a man in a chef's hat (the Family Cafe logo) and the words "Welcome to the Annual Family Cafe"")Ultimately, friendship is the defining trait of Family Café. It is the heart of Family Café because there is a sense of acceptance and belonging at the conference that doesn’t exist to the same extent outside of the conference. Many attendees spend all but three days of their year experiencing stares, strange questions, and even discrimination. However, for the three days each June that the conference is held, all of that goes away. For those three days, everyone is kind to each other and no one is viewed as “less than” anyone else. For those three days, everyone is welcomed.Many people stand and sit and are scattered around a large room that has many display posters standing up on tables

 

This year marked the 18th Annual Family Café, and it was held from June 10–12 at the Hyatt Regency hotel in Orlando, Florida. According to Family Café founder and organizer Lori Fahey, this year’s conference was the largest in history: approximately 10,000 people in attendance, over 160 training sessions, and more than 100 booths filled the exhibition hall. The Café also featured fun activities, including a Gatorland wildlife show, rock climbing wall, photo booth with Superman, and a fashion show. Each Family Café features three keynote speakers and two and a half days of workshops, which are informational presentations given by professionals, business owners, governmental agencies, and self-advocates covering diverse topics such as Many people stand and sit to watch a group of about 6 people perform.education, employment, starting a business, social security, Medicaid, technology, medicine, and advocacy. In addition, Family Café provides many activities for individuals with disabilities like paddle boarding, scuba diving, and sensory rooms.

The conference also has an exhibition hall filled with booths sponsored by vendors, businesses, and government agencies with the goal of letting attendees discover new products and services, or speak to agency representatives to help them with problems they are facing

 

This year’s “Governor’s Summit on Disabilities” featured information relating to the disability community. The biggest news announced at the summit was the introduction of the ABLE Trust, a savings account for people with disabilities that allows them to save money above the $2,000 limit set by Social Security, as well as the news that, as a result of increased funding, 5,000 individuals will come off the 20,000 people waiver waitlist this year.  The summit was attended by Governor Rick Scott, members of the Florida Legislature such as Senate President Andy Gardiner, and heads of governmental agencies such as Barbara Palmer of the Agency for Persons with Disabilities, Pam Stewart of the Department of Education, and Florida Surgeon General Celeste Phillip.Governor Rick Scott speaks to a crowd from behind a podium. A sign language interpreter signs to his right.

 

The Family Café conference isn’t just about education and policy, though. It is also about having fun and making new friends–and the fun begins with the hotel. Each year, the hotel chosen for the conference has something for everyone: massive pools for kids to play in, restaurants for families to dine at, and much more. This year’s hotel was no exception. The Hyatt Regency had three pools to choose from, the largest of which featured a water slide and other amenities. The Regency also had numerous eateries, including bars for the adults, an up-scale restaurant, and a 50’s-style diner.

 

The fun continues with the conference itself. Throughout the three-day event, DJs pumped music throughout the convention hall, enticing children and adults alike to dance. Performance groups, such as bands, a choir, and a dance troupe, performed throughout the Café as well, and they entertained large crowds with their talents. And there were lots of giveaways, with prizes ranging from gift cards to PCs.

A crowded room of people, in the background is a structure that resembles the white house.

 

The culmination of the fun was a massive dance party that was held on Saturday night. For more than two hours, hundreds of attendees packed a large ballroom and danced the night away to all kinds of popular music. Children and adults “raised the roof,” breakdanced, and danced free style. There were organized dances as well, with songs like “YMCA” and the “Cha-Cha Slide” bringing everyone together to dance in unison. The sense of excitement and pure joy that filled the ballroom was infectious.

 

For more information on Family Café, visit www.familycafe.org.

Diversity – Does it Matter in the Legal Profession?

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Many hands of all different colors are outstretched and overlapping

By: Matthew Dietz

The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and in the justice system, and affirms its commitment toward a diverse and inclusive environment with equal access and equal opportunity for all.

–The Florida Bar Board of Governors, May 2010

On June 23, 2015, the Supreme Court issued their ruling in Fischer v. University of Texas at Austin, Case No. 14-981, upholding race conscious admissions policies at the University of Texas, as long as it is only a factor in a holistic review as a means of obtaining the educational benefits that flow from student body diversity.     Justice Kennedy issued a muted opinion from the Court touting the benefits of diversity and quoted from a prior decision stating:

[T]he compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

Diversity also promotes the image of impartial justice, knowing that lawyers and judges that have the panoply of cross-racial, and cross-cultural experiences will not have deep seated stereotypes or prejudices against persons because of who they are, what they believe, or what they look like. However, the diversity within the Florida Bar and the Florida Judiciary does not reflect the population of Florida. If one looks at the statistics of the Florida lawyers and judiciary, as compared to the population of Florida, it is elemental why it is important to ensure that diversity is encouraged to ensure the appearance of justice and the destruction of stereotype.

Category Percent lawyers in Florida[1] Percent Judges in Florida[2] Percent in Jud. Nominating Commission[3] Percent Population in Florida[4]
White/Caucasian 83 84.1 86 55.3
Hispanic 10 8.9 9 24.5
African American/Black 3 6.7 4 16.8
Asian/Pacific Islander 1 .3 2.9
Other Race/Ethnicity 3 2.5
LGBT 3 3.5
Persons with Disabilities 2 13.1

Why does it matter for persons with disabilities?

In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.[1]

 

Mr. Trump has stereotyped a judge solely because of his ancestry and a stereotype that the judge may not be in line with his views.  With a person with a disability, each lawyer, juror, and the judge carries with them a lifetime of stereotypes and misconceptions about persons with disabilities. Most of them start with….”I once had a friend that had a family member that…”  Accordingly, the person’s whole perception of disability is built around the abilities of one person, or, even worse, what people see on television.  So essentially, there is the myth of the “super-crip” or the incapacitated person.

The “supercrip” as superhuman that is lauded by the able-bodied as the inspirational person who “overcame” their disability.   If you have a disability in one area, then you more than make up for it in all other ways. If you are blind, you can identify a person’s footfalls; if you are deaf, you can read lips from two miles away; if you are autistic, you are a mathematical savant.  It is “inspirational” for a person who has a disability to be successful in society, when, in truth, persons with disabilities do not need to act as tools to inspire, but just to live.

On the other hand, the incapacitated person, who is not able to be productive and is essentially invisible is as common.  The person who is shuttered in a nursing home and neglected because society does not provide access.  Society considers these folks “better off” where they can be taken care of, as they have nothing to contribute to society.

Both of these stereotypes are pernicious.

So, as a trial lawyer for a disability related claim, the most difficult part is dealing with these stereotypes and educating my colleagues in the legal profession that people with disabilities are people, just like them.  We all need assistance at one time or another, just like them.  We all need accommodations at one time or another, and we all have something to contribute.

But, when there is two percent of lawyers who have disabilities, a negligible number of judges with disabilities, and no active recruitment of persons with disabilities in law schools, it’s difficult to say to my clients that this judge or lawyer has ever had contact with a deaf person or a blind person.  In every single one of my cases involving a deaf person regarding not being able to get an interpreter for a critical situation in his or her life, the deposition of that deaf person usually includes a detailed description of how a deaf person uses a videophone, drives, or other daily living activities.

So, when Justice Kennedy states educational diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”  The same concept includes disability, and disability related stereotypes and attitudinal barriers against stereotypes must be broken down.

[1] http://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442

[1]2015 Florida Bar Membership Opinion Survey –  In December 2015, The Florida Bar sent an online survey link to a random sample of 3,078 in-state and out-of state, eligible members. By the cut-off date of December 30, the Bar had received 1,074 completed questionnaires, for a response rate of 35%. This response rate is acceptable for this type of lengthy online survey. https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/4ECB247149A8546C85257F41007B6479/$FILE/2015%20Membership%20Opinion%20Survey%20-%20Final%20Report.pdf?OpenElement

[2] The Florida Bar President’s Special Task Force to Study Enhancement of Diversity  in the Judiciary and on the JNC’s, found at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/A4E41688279C883585257CE1004A0B9E/$FILE/Appendices%20to%20Task%20Force%20Report.pdf?OpenElement

[3] http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/4F2B3E1B6C00CB3785257C8B00671B0B?OpenDocument

[4] US Census Quick facts for Florida information, found at  https://www.census.gov/quickfacts/table/DIS010214/12.

For Disability Statistics – ACS Disability Statistics 2010-2014, found at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S1810&prodType=table

For LGBT statistics – http://www.lgbtmap.org/equality_maps/profile_state/10