Author: Enrique Carrasco


Adaptive Sports and Capabilities

We Play Foundation

Enrique R. Carrasco

Most if not all of us will agree with the proposition that the more opportunities for a person to pursue a fulfilling life, the better. We tell our kids, whether in our families or in our communities, “the sky’s the limit.” But many of us—we really can’t say “most if not all”—know there are frightening barriers to opportunities. They can range from race and gender discrimination, to income and wealth inequalities, to a bullet. We can’t seem to go a day without being reminded of them.

But what about persons with disabilities? Not so often, right? Yet we frequently confront literal barriers, such as a woman rolling to an elevator at a metro station, assuming there is one that exists, only to find that it’s out of order. She curses under her breath as she watches her fellow walking commuters stepping onto the escalators to the train platform, taking that convenience for granted. Add to that the societal attitudes that add the “dis” to abilities.

Unfairness all around. Well, then, how would we fashion a framework to secure a fair society for all? Say we come up with a thought experiment where we wipe away all forms of discrimination and implement a rough version of Andrew Yang’s Freedom Dividend, that is, from the start everyone over the age of 18 gets a certain amount of income per month, adjusted for individuals and families, with the aim of using the income to pursue what they deem to be a good life. We can call it the Freedom Income Initiative. Eventually a portion of society will make more than the rest because of their choices, but out of fairness the thought experiment dictates that the least advantaged would benefit from the system. That would do it, wouldn’t it?

Maybe not. Let’s look at a hypothetical to see why this thought experiment without more wouldn’t be fair to the extent that it doesn’t ensure equal opportunities.

Let’s say we have two families making the same comfortable income. They each have a child, Juan and Juanita, who has a passion for tennis. They each have enough income to buy the best racquets and private lessons for their kids and to take them to competitions. They each hope that if their child chooses to do so, they can play ball at a good college and after undergraduate school they can go pro or go to graduate school and choose any discipline that will propel them to a rewarding career. This sounds fair as both have the income to make these choices. The Freedom Income Initiative pays off. Done. Next!

Not so fast. Let’s add another critical fact to the hypo: Juan is in a wheelchair. If we judge fairness through the lens of income alone we are indeed done, even though Juan can’t without more play tennis. So the trajectory I’ve described isn’t available to Juan. In other words, the thought experiment fails to take into account the individual’s ability to convert income into various functions such as playing tennis. To be fair, we need to look at a person’s capabilities. In other words, we have to determine what’s needed to enable Juan to be capable of playing tennis. He doesn’t have to play tennis, but he should be capable of playing the sport should he choose to do so.

So where do we start? Well, we need to conceptualize how the game of tennis should be modified to play in a wheelchair, say, allow two bounces instead of one but otherwise keep the same tennis rules. Then we need to develop a sports wheelchair to enable the player to maneuver quickly around the court—I’ve tried to play in a regular wheelchair and it’s torture. We also need to train coaches in the sport and provide training facilities and tournaments. And let’s develop college programs and pro circuits.

What I’ve described is the Capabilities Approach (CA) to assessing fairness and wellbeing. Pioneered by the Nobel Prize-winning economist and philosopher Amartya Sen, the CA is a critique of the resource-based philosophy of John Rawls. In Rawls’s thought experiment a fair society would in part give persons a fair share of income to pursue their life goals, the comfortable income in my hypothetical. Sen argues that’s not enough. You also have to look at the ability to convert the income into capabilities.

This foundation-sponsored initiative will explore through various papers and otherwise how adaptive sports promote capabilities within the CA framework. Ultimately we have to ask a crucial question: Assuming the CA is the best framework for promoting fairness and wellbeing via adaptive sports, who’s going to pay for it? More precisely, what institutions, if any, should have a duty to pay for what is needed to promote capabilities in the context of adaptive sports? Maybe there’s no duty at all. Maybe it’s just a matter of human kindness and goodwill, aka philanthropy. Let’s find out, shall we?

The World of Document Review #4 Click

Okay, here’s the last post of my series uncovering the subtext of the world of document review. Although I hope you’ll enjoy what you’re about to read, you won’t really get the big picture surrounding the narrative, the meta-narrative that created the narrative, unless you’ve read my previous posts. They explain how racial and gender discrimination in legal education and the practice of law have helped create the doc review world. Think about it. Why would it even exist? Here I’ll finish telling you why. I’ll give you the last piece of the big picture meta-narrative that answers that question. It has to do with the Great Recession that rocked the country starting in 2008, and the rise of technology in the legal field. Here we go.

As I set out in my first post, a few years ago, after teaching law at the University of Iowa since 1990, I returned to Washington, D.C., where I went to law school at Georgetown University Law Center and practiced law for four years at Arnold & Porter, a large D.C. law firm, a “Big Law” practice. To earn some “fun money,” I started working as a contract attorney, meaning an attorney hired on a temporary basis to work on projects involving big litigation or business transactions being handled by Big Law firms. My first project was a huge business transaction that required over two hundred contract attorneys. The orientation took place at a large hotel ballroom in downtown D.C. When I walked into the room I saw what was essentially a “pop up” law firm. And I was struck by what you would never see in a law firm that size or larger. It was comprised mostly of people of color. At least half were women and a majority African American. Two law firms, one amazingly diverse, coming together to work on a major project with real consequences. So cool! Especially for someone like me who has advocated for diversity in both academia and the practice of law.

Well, maybe not as cool as I initially thought.

I really liked what I saw on the surface in the ballroom. But something wasn’t right. I couldn’t pinpoint it though, especially since I was newbie contract attorney and knew little about that type of practice. After all, I had been in the proverbial ivory tower for over two decades.

I needed to dig. Dig for the subtext, the counter-narrative that belies what we see on the surface. Here’s what I found. I’m going to use a stylized narrative, a story, based on the data I’ve given you in my posts so far. I’ll try to capture what this world is like but the story is purely fictional. There’s nothing in this account that discloses anything about the real cases I’ve worked on and I’ve created the characters in my head. At three in the morning. Sitting in my office. Eating leftover Halloween candy I never intended to give the trick-or-treaters.


On the top floor of a newly constructed building there’s an elegantly appointed, spacious office with large windows giving you a bird’s-eye view of D.C. It’s a cold mid-December morning but the sky is clear and the sun bathes the room in a warm light. That’s the senior partner’s office in a Big Law firm, and the person ensconced in an expensive black leather chair is a white male dressed in an Italian custom-made charcoal-grey suit, his feet kicked up on a gleaming, neatly arranged desk. He’s a “rainmaker,” a nationally prominent lawyer who brings in big-time and very profitable litigation. And he’s landed a whopper of a case defending a corporation in a class-action lawsuit involving a defective product that’s harmed thousands of plaintiffs. Billions of dollars in liability are on the line, with possible crushing punitive damages that will tank the company. He’s on the phone with the opposing counsel’s top dog, a very successful and wealthy plaintiffs’ attorney. They’re discussing the big picture strategic positions of the parties. As an “equity” partner, he owns part of the firm and shares in the firm’s profits. He banks about $3 million a year.

Another white male darts out of a smaller office down the hall doing the “I-gotta-pee-so-bad” half walk/trot to the bathroom as he reads a memo, allowing him to bill the client while he attends to his bodily functions. He’s the “junior partner” who handles the supervision of behemoth cases brought in by the rainmakers. Typically junior partners are salaried and don’t have an equity stake. This fellow’s annual salary is $1 million. He hopes that if he gives up sleep for the next few years he’ll be able to join the firm’s equity club.

A few floors there’s a still smaller office. The windows aren’t nearly as large as those of the rainmaker’s and they reveal only a partial view of the city below. But on a sunny day the natural light warmly visits the office in the afternoons, hitting the wall featuring diplomas and family photos. The desk and office chair are high quality but you wouldn’t know it because files are strewn in chaotic heaps on the desk and floor. The person seated behind the wall of files is a white female dressed in a smart business outfit from Nordstrom’s, her eyes glued to her laptop while she cradles her phone between her neck and shoulders as she talks to the junior partner. That’s the office of an associate who’s been at the firm for eight years, a “senior associate.” She’s coming close to being considered for partnership. Many of the lawyers who started with her have left the firm but she’s sticking it out, regularly working eighty-hour weeks in the hope of adding yet another woman to the partnership ranks still dominated by men at the firm. Her job is, among other things, to supervise the production of documents demanded by plaintiffs’ counsel as delineated in a “request for production.” This will involve millions of documents, mostly electronically stored, ranging from emails, to contracts, to PowerPoint presentations. In return for her dedication she takes home $340,000 per year.

Just above the street level there’s an even smaller office. It’s a clean and comfortable office with windows that overlook a loud, chaotic D.C. thoroughfare. On sunny days the office will catch a shaft of light for about an hour. There are two lawyers in the office, one an African American male, the other a Latina. They, too, are dressed business casual, most of their cloths bought at J. Crew and Jos. A. Bank. They are the “junior associates,” working like crazy with the senior associate to organize the request for production, putting in long hours and giving up many weekends. Since they both share the room, they’ve had ongoing conversations about their chances of becoming partner, recognizing there a very few attorneys of color at the firm. More often than not, they leave the firm in their fourth or fifth year. What the hell. They’re making $190,000 a year. Take it while you can get it. Pay down some of their huge student loan debt.

Then there’s the equivalent of the basement. About ten blocks away from the firm there’s a non-descript office building sandwiched between a parking garage and shoe repair shop. Just outside the entrance doors and off to the right there’s a middle-aged man with a prematurely heavily-wrinkled face and an alcoholic’s nose. He’s sucking on a cigarette while he scrolls through his IPhone. He’s wearing Costco’s finest pants and a long sleeve shirt that’s so wrinkled it could’ve been taken from an elephant’s bed. A security card hangs from a lanyard around his neck.

An African American woman looking to be in her thirties enters the lobby carrying a big cloth bag in one hand and a cup of coffee in the other. She’s annoyed by the smoker. On more than one occasion she’s come close to telling him to poison himself down the alley alongside the building but decided he wasn’t worth her time. She’s wearing crisp black pants and a maroon top, both bought on sale at Kohls. Nice clothes, smart shopping, she thinks to herself after every shopping trip there.

The security guard says, “Happy Monday!” The woman, who’s wearing earbuds, says nothing but offers a faint smile, the best she can do on a Monday. There’s nothing happy about it. She crams into the elevator and presses the button for the tenth floor. The smoker will do the same when he’s finished. Her face is expressionless. Once on her floor, she uses her security card to open a heavy glass door and walks through a small reception area with a cardboard sign of the contract attorney agency perched precariously on a shelf behind the reception desk. Seeing a receptionist there was hit or miss. Who cares?

Two weeks ago she had attended an orientation program for the contract attorneys hired for the project. It was in a large hotel ballroom with a stage put together for the PowerPoint explanation of the protocol the attorneys would use to review the millions of documents requested by plaintiffs’ counsel. She knew a good number of the people there. A gentleman sat next to her and marveled at the diversity in the room. “So cool!” he said. She stared at him. He got up suddenly and found another seat. She felt sorry for him. Obviously a newbie.

The firm’s junior partner began the program with a brief welcome and an overview of the project, after which he handed the program over to the senior associate. She spent the next three hours going through the slides. The African American woman studied the protocol, absorbing it quickly. She tuned out the senior associate, who was just reading the protocol. Super boring.

Her mind drifted to the book she had just finished on the Metro from Shady Grove, Maryland, the last station on the red line. The commute to D.C. was over an hour but at least she could afford her one-bedroom apartment. It was the best she could do after the divorce. Thank god they had no children, which would’ve made the separation even nastier. The book, “Just Mercy,” by Bryan Stevenson, really resonated with her. It was an autobiography of an African American lawyer who committed himself to exonerating those wrongly accused of horrific crimes and, in many cases, sentenced to death. All of his clients were the most vulnerable in society, those without a voice: people of color, the poor, exploited women, children, and the mentally challenged. He barely made enough to pay the rent and buy groceries. But he was doing the right thing, she thought. He was on the right side of history.

She’s wondered whether she could’ve been like him. He was a 1985 graduate of Harvard Law School, when the legal market was booming. He had choices. She graduated in 2010 from a fourth-tier law school way down in the national rankings. She had no chance of getting into the top tier law schools given her LSAT score. Some of her friends warned her against taking on massive debt to get what might be a worthless J.D. degree. She ignored them. She had been raped in college. As a survivor, she was determined to become a lawyer and work in some way to help other survivors.

Just after her first year in law school the country plummeted into the greatest financial crisis since the Great Depression. The legal profession imploded. Many law firms collapsed. Those that survived did so by laying off lots of lawyers and slashing costs. Many observed that the profession was entering a new normal. The days of plentiful jobs where demand exceeded supply, like the decade of the 1980’s when Stevenson graduated, were over. For good. Still, she thought she had a decent chance of finding some work in the profession, maybe not in her field of choice right away. After all, the law school she attended all but promised she would land a job no more than a year after graduation, luring her and many others to enroll by showing them what turned out to be misleadingly high placement numbers.

After she graduated, she and her husband, a graduate student in urban studies whom she met and married in law school, moved to D.C. even though they didn’t have jobs lined up. He was able to find a good bartending gig, which allowed her to study for the D.C. bar. She passed the first time around. Now that she had become an “esquire,” she joined the Washington Bar Association’s Young Law Division to build a job-yielding network but with no luck. The best she could find was a dead-end internship with the D.C. municipal government.

They both started to panic about money and crushing student debt that eventually would become due. As the stress rose the marriage crumbled. He blamed her for pushing them to move to an expensive town where every other person is a lawyer, many of whom are unemployed or underemployed in the profession. He left for Seattle. She moved to Shady Grove. A jobless lawyer. Unlike Stevenson, she felt she had no choices.

The woman remembered a conversation she had with someone at a D.C. Bar meet-and-greet. They talked briefly about work as a contract attorney. She was told that kind of work exploded after the financial crisis, especially in places like D.C. and NYC, when Big Law clients demanded lower legal bills and balked at paying for the training of clueless junior associates, who typically were assigned to document review work. What really helped create and grow that job market was the rise of electronic discovery. Back in the day, lawyers had to deal with actual paper when doing doc review. No more. Now everything is electronic. There’s software that lawyers use to record whether documents they’re looking at on the computer screen should or shouldn’t be turned over to the opposing counsel. There’s even “technology assisted review,” which allows the software to learn as the lawyers code the documents, making the review more efficient. In a nutshell, today most document review in large Big Law cases is farmed out to help reduce the price tag for clients while maintaining the firm’s profit margin. Agencies are the intermediaries that find the contract attorneys who’ve become proficient in the software. The woman thought about it. Hmmm… She eventually dismissed it. Although it’s important work, she would find a real job, a job that would propel her to the goal she had set out for herself.

The woman walks down a hallway and uses her card to enter her office. It’s a cavernous, windowless room with nothing other than long, cheap folding tables. On those tables are a hundred or more computer screens, keyboards, and mice, meaning the computer “mouses,” but the facility has furry little creatures that come out at night looking for food droppings. The screens are only a few inches away from each other. The office chairs are cheap and worn, many with questionable stains, some obviously broken in some way. The industrial carpet has seen much better days, permanently recording coffee and food spills. The doors are stained black with thousands of handprints layered over each other. Some might call it office art, the woman supposes.

When she gets to her assigned space—she asked to be moved but was told no—she sets her coffee down and immediately signs into the computer, not bothering to take off her coat. It’s 9:05 a.m. She has to record her time in fifteen-minute increments. By logging in right away she can bill from 9:00 a.m. rather than 9:15 a.m. She’s paid $30 an hour, so that means $7.50, half of her round trip commuting costs. And cumulatively those fifteen minutes will help her pay the enormous ACA insurance premiums. No benefits for contract attorneys unless they’re on a long-term job.

Once logged in she takes her coat off and pulls out of her bag the things she’s grown accustom to bringing to the projects over the past seven years: hand sanitizer, hand cream, snacks such as crackers and fruit, and a portable phone charger. She also pulls out a shawl because she sits under a vent that blows cold air even in the winter. Then comes her lunch, a chicken salad in a Tupperware container. She hopes she won’t be the victim of fridge theft. It happens too often.

She returns to her station. The room is filled with people who’ve settled into the same routine. They’ll spend at least eight hours that day staring at the computer screens clicking the mouse to indicate whether the documents are relevant to the litigation, and whether they are protected by attorney-client privilege. Many wear earbuds and listen to music or podcasts. On occasion they’ll pull them out and chat with each other, sometimes breaking out in raucous laughter. But they’re careful not to do that often as they risk being reprimanded by an agency supervisor for being too loud and disturbing others on the floor. For that reason, some talk to each other in whispers. The woman doesn’t like that. Sounds like they’re in church. That space is sacred. This place. She stops herself.

Throughout the day the reviewers check their email and maybe check out Facebook. They’ve learned through the years to do this furtively in the room, placing the smartphone under a pad of paper and leaning over the desk as if concentrating intensely on the work. They do this because some agencies at least officially say that phones have to be put away. If they want to make a phone call they have to leave the room and find a space in a hallway. There’s no privacy for the call but reviewers have learned out of reciprocal courtesy to tune each other out.

Some people, like the guy sitting next to the woman, apparently don’t give a shit about phone use in the room. He spends most of the time scrolling through stuff on his phone, maybe funny videos, only occasionally coding a document. Over the years he’s learned how to code near the minimum number of docs per hour—projects will require a minimum per hour, maybe sixty—to avoid getting fired. Even if he falls well below the minimum, he knows that some agencies look the other way if there are others clicking quickly through the docs. The woman feels both contempt and pity for this guy and others like him. They have no self-respect. Maybe they were prideful, inspired law students but years of doc review have sucked that out of them, leaving a mere shell that barely resembles a lawyer.

The reviewers are very diverse, a heck of a lot more diverse than the Big Law firm that hired them, much more diverse than the profession as a whole. Many are African American. Latinos as well. About half are women. Africans, too, many from Nigeria. There’s a wide age range. You have your recent graduates who can’t find jobs right away. You have folks who’ve retired and work for fun money or to battle loneliness—or maybe they can’t stand to be with their partners all day. The bulk of the others are lawyers who’ve been laid off or otherwise haven’t been able to find non-contract attorney jobs for some time. It’s common knowledge that working more than a couple of years as a doc reviewer is the kiss of death. Law firms and other employers in the legal profession won’t touch them.  That’s probably why the recent grads look super anxious and miserable. You can spot them a mile away.

Now and then when the woman visits the cramped lunch room she’ll overhear some reviewers musing over their situations in life. It’s not so bad, someone says. Sure, we don’t make law-firm salaries and have no benefits, but doc review is decent money and we leave work behind us after we punch out. We can have a life! When the woman hears that, she chuckles to herself. The most terrified persons she’s ever seen is when a firm lawyer or agency person walks into the room and announces the project is over. As the reviewers gather their belongings, they wonder how quickly they can check their phones and laptops for other project openings. If they hit a dry spell they’ll be waiting on tables or driving for Uber.

The woman has settled in and arranged everything in her space for the day. She’s wiped everything down with sanitizer and wrung her hands with moisturizer. The door opens and the two junior associates walk in, trying to appear confident, competent, and friendly all at the same time. It’s not working. Simultaneously funny and pathetic. The reviewers slip their phones quickly under their notepads. Except the guy who doesn’t give a shit.

The associates thank everybody profusely and express great confidence in the awesome work everyone on the team will do on behalf of the client. To help move the project along they’ll be patrolling the room to answer any questions the reviewers might have. The woman rolls her eyes. She’s far more skilled than these kids when it comes to doc review. But she, like all other reviewers, has to grin and bear it. Some of the fawning is nauseating.

The woman stares at the computer screen. Her face still emotionless. She closes her eyes, imagining another life. The life of a passionate lawyer. Feeling alive. Inspired. Noble. How she felt as a first-year law student. A life that wouldn’t seemingly be pre-determined by her race and gender. A life where she could at least have a shot at being another Bryan Stevenson. That’s all she wanted. Just a shot.

She opens her eyes. Something powerful wells up inside her. It happens a lot at the beginning of her day. As always she exhales slowly to keep it inside, fearing that if it escapes her it won’t come back. She’ll eventually become yet another reviewer who doesn’t give a shit. She can’t let that happen.

She blinks away a budding tear.

And starts on her first document of the day.



The woman did eventually get her shot and wound up doing policy work in D.C. for an international foundation promoting gender equality. When she left her last and final doc review project, her co-workers as well as the agency personnel cheered for her, as they did for everyone who could leave that world. She let herself breakdown and cry. They were her friends after all (well, not all of them), even though they all scattered quickly as soon as they punched out. Rarely would they socialize outside of work.

Although she was miserable doing doc review, she knew that it was important work for the client and that the agencies perform an important role in finding good reviewers. If you carelessly fail to code documents privileged and not discoverable, vital information that would’ve remained confidential now must be disclosed to opposing counsel if it’s relevant. This could be disastrous.

She also realized that the contract attorney doc review industry now plays an important part in the new normal of the legal profession. Law firms have had to re-think their business models. They’re now moving away from the billable-hours structure to fixed price or budgeted arrangements with clients. And that will involve farming out document review so that firms aren’t charging clients high hourly fees for work done in-house by junior associates making $190,000 a year.

The woman tried to find the gentleman who clumsily sat next to her at the orientation for a big project years ago. But he was nowhere to be found. She wanted to tell him that in a way it was cool to see so many people of color there. Thirty years ago there were far fewer in the profession as a whole. It still bothered her, though, that most Big Law firms were still a pyramid in terms of diversity. At the top, the partnership ranks, you see few people of color and not enough women. The diversity grows as you move down the pyramid, with the greatest number at the base, the doc reviewers.

Would she want to be a partner in a Big Law firm? Probably not. But she wants to live in a world where she could have a real shot at it if she wanted to. Just a shot.



Wheelchair + Tennis = Life #19 The Meaning of Empowerment or What You Would Want for Your Daughter

Image result for harlon matthews

One word kept coming up over and over again in my conversations with people in my tournament tour: empowerment. It seems like that word is used a million times a day, from lofty political speeches to diaper commercials. What does it really mean? Apart from a legal definition, giving someone legal authority to do something, a simple definition might be “to give someone power.” But that’s so wide open that one can say that bigots are empowered to hate and discriminate. We don’t normally use the word in that way–normally. Usually it has something to do with sparking an individual’s agency to achieve something good in his or her life. Okay, that’s better. But how does it work in the world of wheelchair tennis?

My conversation with Harlon Matthews in Augusta helped me understand. At the 2014 U.S. Open, the USTA presented him the “The Human Spirit Award,” in memory of Randy Snow. In April 2015, he received the “Brad Parks Award.” Both awards were bestowed upon Harlon for being an outstanding ambassador of the sport, having helped grow the sport, not just in Atlanta, the state of Georgia, or the southern section of the USTA but nationally as well.

Why does Harlon do this? When he was thirty-four years old, he went to an all-sports wheelchair camp, where he met the great Randy Snow. A longtime wheelchair basketball athlete, Harlon gave tennis a try. Here’s what, in Harlon’s words, “motivated and empowered” him: “Randy came to the net and said something to the effect, ‘I’m sorry that I can’t remember your name. But I saw you bank a fifteen-foot shot in basketball. And now I see you on this court, and let me tell you something, you’re a natural born athlete. If you don’t keep doing this, you’re selling yourself short.’” Harlon didn’t sell himself short. He went on to become a dominant wheelchair tennis athlete.

“It’s all about heart,” he said. He had received something so good that he felt passionate about sharing it with others. For Harlon, it’s been about instilling that good feeling in other tennis players, who then take the feeling with them off the court. I pushed him a bit further and asked him what that “good feeling” is. He said, “You are moving, you’re not just sitting still. You say to yourself, ‘I have the energy to do this. I’m accomplishing something. If I can do it on this stinking tennis court, I can go out and drive and do other stuff.’ Tennis is the catalyst, the tool to do other things. You have a purpose and you begin to ask, ‘What else can I do?’ It’s not just the status quo.”

As I thought about what Harlon said, there were two things that stood out to me. First, I wondered what “I can go out” really means.  Let’s work with this hypothetical drawn from the many people I met. Let’s say that Alma was an able-bodied person who recently became a paraplegic because of a motorcycle accident. Alma’s trauma sends her into dark places. She exists in the shadows of life. We can think of Harlon’s words as “empowering” Alma to move out of the darkness and shadows and into the public spaces of life. “I can go out,” she say.

The private sphere of the family is critical to Alma’s self-esteem, assuming the family is loving and supportive. But the ability to participate in the public sphere is equally critical. It’s in our public spaces that we build upon our identities by engaging with others in thoughtful conversations about life and its meaning. Those spaces range from political rallies to religious or spiritual gatherings. By engaging in the public sphere, by “getting out,” we hope to significantly reduce and eventually eliminate the socially-created stigma and shame of a physical disability. Of course, Alma won’t be able to make that transition if there are physical barriers to our public spaces or bigots are able to discriminate against her with no consequence. In the United States, her transition is made easier by the Americans with Disabilities Act, the landmark legislation enacted in 1990 that provides nondiscrimination  protection in a broad range of areas, including employment, public services, and public accommodations.

The second thing that struck me about Harlon’s words is that empowerment is something that triggers that individual, who now inhabits public spaces, to “do other stuff,” triggers that individual to ask, “What else can I do?” It’s not just what Alma actually does achieve, but how many other opportunities might be available to that person. Let’s say playing wheelchair tennis “empowered” her to use her agency to move forward, get an education, and become an engineer. That’s fantastic. Alma actually achieved something very significant.

But I think Harlon was getting at something more than that. As an academic, I did lots of work with the so-called “capabilities approach” to well-being, a framework pioneered by the economist Amartya Sen and philosopher Martha Nussbaum. Don’t worry. I’m not going to go academic on you. But for Sen, who wrote Development as Freedom (a great book I recommend to you), empowerment is all about how much freedom an individual has to elect from a range of goals. So for Alma we would ask, “How much freedom does she have to pursue and achieve any number of things she might want to do?” Does she have the options to be not only an engineer, but also, say, an orchestra conductor, a doctor, a lawyer (God forbid!), etc.? The more options, the better.

Can wheelchair tennis do that? Expand a person’s “capabilities?” A tennis ball can’t alone expand Alma’s range of options. But it does open her eyes to possibilities that she couldn’t see in the darkness of her trauma. And it’s the type of people you’ve met in this book, and the countless others like them, who help her out of the darkness, in some cases with a simple toss of a tennis ball that she manages to hit over the net. From there it takes a network of support to expand Alma’s options—e.g., family and friends, therapists, private foundations, educational grants and loans and non-discrimination legislation.

If someone says that Harlon, as I’ve interpreted his words, is asking for too much, that we should be happy that people like Alma can find “a” job and not be unemployed, let’s see if that person would change his tune if Alma turned out to be his daughter.













Wheelchair + Tennis = Life #19 On Making Sense of the World

To say you’re going to lose your way of life is to say you’re going to lose what helps you make sense of the world. Think about it. “My way.” The “my” is the individual who uses his or her agency to construct a method, an algorithm of sorts, to make it from morning to night and achieve something. If I do this, this, and that, I’ll achieve what I want. If I (1) get up, (2) take a shower and get dressed, (3) eat breakfast to give me energy for the day, (4) take the bus to school, and (5) go to classes and pay attention, I’ll achieve the goal of learning something.

There’s also the “way” of “my way.” That’s everything else that helps the individual execute the algorithm. You need a home in which to sleep well, someone to produce the food for you and get it to your plate, a public or private mode of transportation, a school and teachers.

So when you say you’re going to lose your way of life, at least looking at it positively (a way of life can be destructive), you stand to lose everything that helps you become a  human being, that helps you conceptualize a life  worth living, that helps you see beauty in life. It’s crazy scary, the kind of scary that sucks the air out of your lungs in an instant, that makes your heart skip a beat or two. You fear. You freeze. Your sense of agency disappears. What are you going to do, especially if you’re a kid?

Especially if you’re a kid like Nick with his severe physical limitations? To really get how scary it is, you have to get “granular,” you have to break down in much more detail each part of the algorithm. I’m a quad like Nick but I don’t come close to having his limitations. Earlier in the book, I described a component of my algorithm, getting dressed. I free fall into a chair. Then comes the underwear (sorry, yeah, TMI). Then the pants. Then my socks, which alone takes up to five minutes. Then strapping on each leg brace. Then putting my footwear over the brace. Then putting my shirt on and using what’s called a “buttoner” to button my shirt. Then standing to pull everything up and finishing that part of the algorithm. This could take up to twenty-five minutes or maybe more. And if I stand up and realize I put on my underwear backwards? Start over. I feel really stupid when that happens.

Now can you imagine how much harder it is for Nick, a guy who can’t touch his feet with his hands? How incredibly granular each part of his algorithm is? In Nick’s case, it was his dad that took every opportunity to push his son towards as much independence as possible, to help Nick construct his “way of life.” One of Nick’s vivid memories, one that he has shared with many people, was when as a kid, about four or five years old, he woke up one summer morning excited that he would get to swim later in the day. He called his dad into the bedroom.

“Are you ready for a swim, Nicholas?”

“Heck, yeah, dad!”

“Alright, then.” His dad tossed Nick’s swim suit at him, walked out of the room, and closed the door.

“What? Dad! . . .Dad!” No answer.

Nick laid there, not knowing what to do. He cried. He screamed. The door remained closed. Nick eventually realized that if he wanted to go swimming, he would have to put on the swim suit himself.  He wrestled and wiggled for what seemed an eternity. He eventually got it on.

“Dad! I got it on!” Nick shouted triumphantly. His dad walked in, extremely proud of his son but intent on not making the situation a big deal.

“Okay, then, let’s go.”





On Being A Female Law Student—and Puerto Rican #7 “We’re not chump change!”

This next excerpt from Kristymarie’s article looks at the concept of meritocracy as it applies to students of color. What she writes about is familiar to me based on my experience in academia.

When persons of color began to make a concerted effort to diversify law school faculties in the late 1980s, we got pretty severe blowback. Back then faculties were virtually all comprised of white males. They invoked meritocracy and argued that we weren’t qualified to become teachers and scholars. Relying on affirmative action to diversify would lead to mediocrity.

This was a crazy stupid argument put together to protect the positions of mediocre white guys who felt threatened by people of color. We had awesome credentials. But that wasn’t good enough. No, we had to be supermen and superwomen. Actually, women of color had to be super-duper. We had to wear capes to our interviews. Mine was fire engine red with cute little rhinestones and…yeah.

We persisted, though. Professor Michael Olivas, for example, created the “dirty dozen list,” which called out elite law schools for not having any persons of color on their faculty. Little by little, we made our way onto faculties around the country. Once there, we still had to prove that we were super teachers and scholars. Never mind that much of the white guys’ teaching was uninspired and their scholarship about as profound as a TV Guide.

Still, we persisted. And little by little, academia came to know that teachers and scholars of color rock. We bring stuff to the classrooms that, because of our backgrounds, transforms dry presentations of doctrine into fascinating explorations of subtext underlying black letter law. Our scholarship brings critical perspectives and commentary that were unimaginable before we made our inroads into faculties.

Put simply, we’re kickass. And we don’t wear capes anymore. At least not in public.

Let’s see what Kristymarie says about all of this in the context of law students of color. You’ll see that she says, “we are not chump change.” Yeah, you all are mucho dope. Reminder: I’ve stripped out the footnotes to make the excerpt more readable.

“While the legal community thinks of its diversity as a priority, it continues to create a hostile environment for diverse individuals. The hostility is not brazen—it is subtle. Micro. And one of its most effective weapons is the myth of meritocracy.

The myth of meritocracy is the illusion that democratic choice and the freedom of confident action are available to all. This myth rests on two inaccurate assumptions: that the opportunities are equally available, and that any differences in achievement are due to the racialized and gendered candidate’s unique choices. Peggy McIntosh exposes the myth of meritocracy as perpetuating white privilege, which often gives whites “license to be ignorant, oblivious, arrogant and destructive.” That ignorance allows stakeholders in law school career-development to believe that different outcomes are caused by differences in talent and work ethic, and ignore the role of—and their role in—the oppressive environment…

[A] racialized candidate is simultaneously highly visible and highly invisible. It creates a need for the racialized candidate to make himself or herself known for markers other than his or her race. Raising awareness about this consistent struggle—whether to move towards or away from identity expression—is crucial for the non-racialized candidate, the law school faculty and staff, and the law firm recruiter.

Furthermore, these stakeholders should be aware of how trying to fight these generalized preconceived notions affects the racialized candidates. Specifically, the non-racialized candidates should care because, one day, they will be the cross-interviewers or the law school faculty. For their part, law faculty and staff can no longer afford the luxury of ignoring the subtleties of the racialized candidate’s experience because their ignorance perpetuates the oppressive environment. When the legal recruiter speaks of equal opportunity in the job market and meritocracy, he perpetuates white privilege and must be aware of this. Your license to be ignorant has been revoked.

Using buzzwords like “white privilege” and “ignorance” may cause some to tune out the message. But consider this: out of a class of 152, only nine were Latinos/Latinas. One of them was a corporate lawyer in another country before starting law school here. Another has won campus-wide awards, was Editor-in-Chief of a journal, and went on to clerk for a state court of appeals. A third one won a writing competition, and was on a journal board and a moot court team. Another was also on a journal board, won a public defender fellowship in a coveted district, and is now an associate at Chapman & Cutler. Another is an associate at Dorsey & Whitney, part of a tax bracket he has never been acquainted with. These are just some examples from these nine individuals being some of the most invested and successful law candidates available. These racialized candidates struggle between visibility and invisibility, which usually leads to anxiety, teeters between validation and covering. The mere presence of that anxiety validates the idea of the meritocracy, and creates a burden on the racialized candidate to prove himself or herself worthy.

As I just did there.

Because it has become second nature to highlight that we are worthy.

That we are not chump change.

But what is the real kicker is that the meritocracy argument disregards that each and every one of those students had to be above average and Latino/Latina to get into Iowa Law. When a stakeholder speaks of meritocracy, he seems to disregard the fifty percent of the law school class that is below average and, more often than not, white. When he speaks of equal opportunity in terms of the colorblind evaluation of résumés, he ignores that a racialized candidate has had to overcome a variety of obstacles a non-racialized candidate would not even consider just to achieve the same résumé content. This is how equal opportunity and meritocracy perpetuate white privilege. This is why awareness of the consistent slights the racialized and gendered candidates face matters.

An important step in creating a more productive environment for racialized and gendered candidates is to recognize the implicit bias that may affect interactions with racialized and gendered candidates, as well as the stereotype threat, which may hinder the racialized and gendered candidates’ performance. Implicit bias encompasses the unconscious ways in which one allows attitudes or stereotypes to affect our understanding, actions, and decisions. Stereotype threat is the situational predicament in which the racialized candidate debates whether to cover or reverse cover, fearing the risk of confirming negative stereotypes about their social group. Educators and interviewers may overcome these implicit biases and pattern preferences by establishing a rapport with the candidate before assessing their competence. Building rapport first may help curb the influence of cultural biases.

Similarly, cultural, gender, and/or racial sensitivity training may build upon the awareness stepping stone. Many educators or hiring professionals fail to understand the communication nuances that isolate racialized and/or gendered candidates. When a racialized candidate is referred to as “articulate” or when a gendered candidate is referred to as “ambitious,” the implication is that the candidate breaks through the stereotype of racialized candidates having poor dominion of the language and women being conformists. Dismissive statements about a married person’s unmarried name, comments about the candidate’s hair or appearance, or expectations about their involvement and the causes that are important to them equally reflect these racialized or gendered expectations. The educator or the interviewer may not think twice about his or her vocabulary, or his or her commentary. At the same time, the educator or interviewer may be isolating the candidate. Cultural, gender, and/or racial sensitivity training may provide an opportunity to replace the problematic behavior, and provide these individuals skills aimed at lessening that isolation.

Another more lofty potential solution is to provide more role models, which would require an overhaul of the education pipeline. Part of the isolation that results from stereotype threat is the idea that one is left by one’s self to be the representative of one’s race. Your identity and individuality are stripped, only to be replaced by the burden of being the definition of the group you represent. These are the instances where reaching critical mass lessens the burden on the few, allowing representation to become a duty once again: a task we undertake proudly, rather than something we have no choice but to shoulder.”

Having said all this, I’m sure Kristymarie would agree with me that our law school, the University of Iowa College of Law, is a special place where faculty and staff try hard in many cases to make the law school a supportive community. And many of the faculty members are awesome teachers and scholars. The school is legendary for its highly skilled teachers. And I wouldn’t have become the scholar that I am today without colleagues who went out of their way to constructively critique my work. And help me keep my cape clean for the homecoming parade.