Disabling Lawyering: Buck v. Bell and the Road to a More Inclusive Legal Practice.

• Author: Abudaram, Jacob Izak

DEMYSTIFYING DISABILITY: WHAT TO KNOW, WHAT TO SAY, AND HOW TO BE AN ALLY. By Emily Ladau. New York: Ten Speed Press. 2021. Pp. 167. $16.

THREE GENERATIONS, NO IMBECILES: EUGENICS, THE SUPREME COURT, AND BUCK V BELL. By Paul A Lombardo. Baltimore: Johns Hopkins University Press. 2022. Pp. xvi, 404. $34.95.

INTRODUCTION

Make no mistake: eugenics never left us. (1) While the early twentieth-century version of it centered on the elimination of "feeblemindedness" and lowering taxes for nondisabled people, (2) today it shows up in conversations around who to save during crises, (3) immigration policy, (4) population control, (5) and many other areas touching the law. The legal profession itself has a long history of discrimination against disabled people. (6) While critical progress has been made toward an inclusive legal profession and justice system, (7) much like broader systemic ableism, there is far more work to be done. As clients and navigators of the legal system, disabled people experience a wide range of unique disparities, including a lack of physical accessibility, a lack of appropriate accommodations from courts and their lawyers, obscure processes, and other forms of direct discrimination. (8) The harm caused by the severe underfunding of indigent defense is well-documented, (9) and with the poverty rate for adults with disabilities more than double that for nondisabled adults, (10) disabled people disproportionately bear the burden of that harm. (11) It is then unsurprising that nearly 40% of people incarcerated in prisons are disabled (12) despite making up 12.8% of the United States at large. (13) Finally, with disabled lawyers making up only 0.5% of all attorneys at American law firms, (14) "[i]t is unsurprising that most legal providers do not know how to make their services, offices, and products accessible to [disabled] persons." (15)

Systemic ableism in the legal system is nothing new. Paul Lombardo's Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (16) captures a critical and relevant part of that history, documenting the American eugenics movement that led up to Buck v. Bell, the infamous Supreme Court case in which the highest court held that a Virginia statute permitting the compulsory sterilization of disabled people was constitutional. (17) Lombardo's thorough research captures both the systemic factors at play in Buck and its aftermath. It also captures the personal story of Carrie Buck, whom Virginia officials selected to serve as the plaintiff in the case and who was ultimately sterilized by the state (Lombardo, ch. 8). Three Generations, No Imbeciles also reveals critical failures in lawyering at both the trial and appellate levels, underscoring the consequences of ineffective counsel on both personal and systemic levels (Lombardo, chs. 9-12). Understanding the significance, relevance, and failings of Buck v. Bell is critical for any legal professional working with disabled clients. But that understanding cannot be a solely retrospective one: rather, legal professionals ought to consider how ableism persists today and actively work to eliminate it from their practices. (18) Enter Demystifying Disability.

Emily Ladau's (19) work provides an accessible blueprint for understanding disabled experiences across history, interacting with and elevating diverse disabled voices today, and ultimately being an ally to the disabled community. She starts with the baseline question--"What is [disability, [a]nyway?"--and proceeds to highlight definitions that span far beyond what, say, the ADA-informed lawyer might be familiar with. (20) She then provides readers with a number of different models through which to think about disability, the many dos and don'ts of interacting with disabled people, the current state of disability advocacy, and the places where nondisabled people can fit in as allies or "accomplices" (Ladau, pp. 141-49). Given the often-enormous consequences that interactions with the legal system can have for disabled individuals and the damage that the legal system has wrought on the disability community, legal advocates would do well to heed Demystifying Disability's key themes of unlearning paternalism and being an "accomplice" to the disability community. At a moment when eugenics is again rearing its ugly head, (21) when disability discrimination is rampant, (22) and when the legal rights of disabled people and other marginalized communities are at stake, (23) it is crucial that lawyers have the skills and tools to inclusively work with disabled clients.

This Notice seeks to provide legal professionals with a contextualized set of tools and frameworks for working with disabled clients. Part I draws out important concepts from Lombardo's accounting of the eugenics movement and Buck v. Bell. Part II discusses the failures in lawyering that pervaded Buck at every stage of litigation. Part III utilizes Demystifying Disability s lessons on being an ally to the disability community and applies them to the practice of law and legal education.

1. AMERICAN EUGENICS, ALBERT PRIDDY, AND LAYING THE GROUNDWORK FOR STERILIZATION

   Lombardo expands the frame through which we view Buck v. Bell, outlining the history underpinning forced sterilization and the individual actors involved in the case. In so doing, he brings to light many of the pseudoscientific, cultural, and legal issues that disabled people still confront today. Eugenics is "the scientifically erroneous and immoral theory of 'racial improvement' and 'planned breeding.'" (24) Support for sterilizing disabled people grew out of the American eugenics movement. Early twentieth-century advocates believed that "the use of methods such as involuntary sterilization, segregation and social exclusion would rid society of individuals deemed by them to be unfit." (25) "Mendel's theory of inheritance, Francis Gabon's family study methods, and the general passion to eradicate social problems came together in an American institution dedicated to the study of eugenics. In 1910, biologist Charles Benedict Davenport established the Eugenics Record Office (ERO) ..." (Lombardo, p. 30). Davenport and other well-credentialed scientists raised funds from prominent philanthropic sources like the Carnegie Foundation and the Rockefellers on the idea that eugenics was the way to identify and eliminate socially undesirable traits like "insanity" and "feeblemindedness" (Lombardo, pp. 30-31). A second common rationale was an economic one: "Should we merely stand by to watch philanthropists shower their beneficence on 'the delinquent, defective and dependent classes' or even raise the taxes of ordinary Americans to that end?" (Lombardo, p. 31). In other words, supporters argued that eugenics would lessen the tax burden on everyone else by reducing the number of people requiring government support. From this bedrock, wherein wealthy elites funded privileged scientists, it is not hard to see how eugenics would ultimately embed itself into the legal community, where similarly well-credentialed and mostly white men were making most of the decisions.

   Eugenics became popular among scientific, academic, and political elites. (26) Before sterilization measures became law, some doctors were sterilizing prisoners extralegally (Lombardo, p. 58). Advocacy for sterilization measures grew in the 1910s with doctors loudly claiming that sterilization of women who had succumbed to "diseases" such as alcoholism, syphilis, feeblemindedness, and immorality would "prevent state bankruptcy" (Lombardo, p. 59). The first volume of the Virginia Law Review published Sterilization of the Unfit, which asked "how the 'blessings of liberty, or full domestic tranquility' could be enjoyed if persons 'civilly unfit' were permitted to 'procreate their species and scatter their kind' among normal citizens." (27) State legislatures passed laws permitting sterilization surgeries purportedly designed to benefit the physical, mental, or moral condition of inmates (Lombardo, p. 60). In Virginia, as in other states, physicians at institutions had wide latitude to perform whatever surgeries they thought were "safe and effective" (Lombardo, p. 60). Surgeons like Dr. Albert Priddy, superintendent of the Virginia Colony for Epileptics and Feebleminded, found any and every excuse to sterilize women, describing them as "immoral" and having identified "symptoms" such as "fondness for men," a reputation for "promiscuity," being "oversexed," "wayward," "incorrigible," and many other trumped-up observations. (28) Priddy's work set a clear double standard in which the sexual activities of women were a cause for commitment to an institution and sterilization while similar behavior in men did not warrant the same (Lombardo, p. 63). It seems that for the elites who were often dictating norms and standards of "fitness," the only people fit to procreate were those who looked, acted, and grew up like them.

   After Priddy's sterilization work came under scrutiny in Mallory v. Priddy, (29) he sought to avoid future controversy by advocating in the state legislature for leniency for doctors performing sterilizations (Lombardo, pp. 9192). He used a model law written by Harry Laughlin, a leader in the eugenics movement, and published by Judge Harry Olson of Chicago's Municipal Court as part of a comprehensive book on eugenical sterilization (Lombardo, ch. 6). Priddy, along with lawyer and state legislator Aubrey Strode, drafted a law containing careful, politically calculated language that would neither raise alarms for people concerned about sterilization nor be too confusing (Lombardo, pp. 96-100). Rather than rely on any data in advocating for passage of the law, they wrote: "[H]uman experience has demonstrated that heredity plays an important part in the transmission of insanity, idiocy, imbecility, epilepsy, and crime" (Lombardo, p. 98). This sort of language effectively moved...