Institutions to Independence
Judge Donovan Frank Interviewed for TPT
Justice Denied and Justice Served for People with Disabilities
Can You Describe How You Became Involved with Developmental Disability Issues?
Judge Frank: The quickest way for me, the most important way to do that, is to roll ahead to my first couple years out of law school, where I met many individuals with, primarily developmental disabilities, many parents, and I want to say that because they... in addition to meeting people and the stereotypes falling away, that we have more in common together than we have differences.
I also was taught so much by these individuals, and I'm sure that had some role then -- when I started prosecuting out of law school sex crimes, domestic abuse crimes -- competency was never an issue of either children with me, or individuals with a variety of developmental disabilities. And so because I had seen that all too often, that was used as an excuse not to file a law suit and not to prosecute a crime.
I didn't have one case -- and I actually did have the first case to go to the Minnesota Supreme Court thanks to a very courageous state trial judge on... on how to explain competency to juries with an expert witness, and children who had been victims of sex crimes, because the people want to dismiss people as, "well they don't think", "they don't remember", "they don't recall", "they can't express themselves" - ALL untrue.
It's more the inability of people like me to communicate. That's the first place that I saw it and how I got educated -- just by luck of the draw, I would say, rather than misfortune, I said "fortune" -- my first job out of law school was doing mental health commitments and placements as a lawyer for St. Louis County, and in that role I end up being placed on developmental achievement board in Eveleth, Minnesota, and then the Range Mental Health Center, and I got all sorts of education about "this is how you treat people who have disabilities."
And so... Because I used to see it in the courtrooms day in and day out -- and that was my first exposure -- other than growing up as a child and hearing the ridicules of people before mainstreaming, and making fun of children that were in special ed classes -- and I'm just very thankful I was raised, "that is not tolerated so..."
But was my first exposure before I became a judge was prosecuting a lot of those cases, and again I credit advocates for children and adults with disabilities. They... I think they watch for young lawyers coming out of law school, they say "I think he's trainable, I think we can train this guy and teach him something and perhaps we can."
They're the ones that really taught me, because I don't consider myself an expert and I also got taught by many of the people with disabilities that I worked with, who taught me and showed me who they were.
So that but... It's that inability to believe... and then of course I came out of law school at a time when with these major local and U.S. Supreme Court Decisions the phrase, "You have a right to live in the least restrictive alternative." You just don't take individuals regardless of their disability and lock them in a state hospital, drug them up or restrain them down, and that's not living, that's not humanity, and so all of these things were happening in the '70s when I came out of law school.
What Can We Do About Open Bigotry Against People with Disabilities?
Judge Frank: You know, I think I've referred to individuals with disabilities as the forgotten minority, you know, people... and what I think it is, it's as they finally get the promise that the Constitution makes for all citizens in this country – of equal opportunities, equal justice, equal access, living in the community, working, like in this building, and I work with individuals who maintain the building -- you don't live and work with people with disabilities without those stereotypes falling away.
And so, I think getting challenged... one of the first things we did -- and I give at least two people, Colleen Wieck and Shamus O'Meara, credit -- we did a presentation to the Federal Bar Association saying "As we talk about unrepresented minorities, the largest group, in our opinion, are people with disabilities." It's time to educate the local bar, which is in... we've done actually two seminars, and there'll be more, to train people , to say, "Well we've forgotten about these individuals, and the... and the representation isn't as difficult as you might think, if you educate yourself."
And so I think, challenging the system, those traditional stereotypes that are so contrary to reality and so damaging to individuals, especially with disabilities -- much like stereotyping people of color and most especially African Americans were during the civil rights movement -- those are the changes being made.
But who are we being challenged by? It's the individual with disabilities, and their parents and friends and loved ones, it's the advocates, lawyers, non-lawyers -- because make no mistake about it, it isn't the intellectuals, it's not the judges. I take an oath, I'm just trying to keep my promise and follow my oath. But it's these individuals who are saying, "We're not going to tolerate this anymore" and they're educating us, there are... So I think that... I don't want to be over-simplistic about it, and we've got a ways to go, but that's what's changed I think.
What are the Challenges and Successes with Employment Issues?
Judge Frank: Well a couple of... In my own opinion, again it's the... and again I don't speak as an expert, I'll talk mostly about the people that I know, and in the employment area... for example, let me just take a couple of employers in downtown St. Paul, let's take our courthouse. We have 22 individuals that work in this building. Virtually all of them, with maybe the exception of one or two, have some type of developmental disability.
Well, how many people think, even when we'll talk about their opportunity to be hired here, how many people think of, well if you cut back money for transportation, public transportation, to cut back on public transportation is to destroy someone's livelihood or work, because everybody can't afford to own a car, everybody can't drive a car.
And if you take away whether it's a transportation program or public transportation generally, those are things that now the disability community is putting on our radar to say, "You know, we have to look at isn't it our responsibility to give everybody equal opportunities and equal access, and how do you do that if there is no public transportation and all these government programs are cut? Giving people a chance to work and properly train them."
When I first started working here in this building in 1998, I kind of, out of ignorance would... if I had a complaint about something happening in the building – I should... this is not unique to the disability community -- it seems like people to get the blame for things, it's not the hierarchy. It travels down the ladder, and so I finally had to start going to supervisors saying, "We love working with the individuals here, and we think all of our individuals that are hired should be... they should be individuals with disabilities, because they're fully capable of doing the work, but they're like everybody else if you don't train them and tell them what their responsibilities are," and that really was the problem.
Well, there are a lot of progressive employers who understand that maybe our courthouse, or private or public employer, should look like they represent the people that live in the community. That means not just race issues but people with disabilities. It isn't that they can't do the work, if they are not given the opportunity to do the work, and it's the full package. It's accommodating the hours with making sure there is public transportation, there is proper training.
I won't name the company, because somebody would think it would be an endorsement, but there's a private corporation here in downtown St. Paul -- and I think there's a disability group, LifeWorks, and there's others -- well, this company hired three severely autistic young men and women and the first thing they did in the first two weeks is brought in trainers to say, "Let's educate you, since your employer is willing to hire and do the right thing here, let's educate you on this condition so you don't do something out of ignorance or unintentionally."
Well, I know a couple of people who work at this organization, they're saying "There's NEVER been more work done in this area," and instead of not getting the work done, these three individuals at different times are coming to their desks and saying, "We're done. You must have more work for us to do."
Well that took just education, they do the work just fine, there's no impairment there. They're educated and they're doing the work just fine, but it's the opportunity, and it's the stereotypes fall away and we have a long ways to go but we're much further today.
I maintain that much of it's happening because state hospitals have been closed, because many of the laws that were passed did not mandate that regardless of the nature or degree of one's disability they're entitled to any job they want, it's you pursue... they have the same opportunities based upon their skills and they just ask to be given a fair chance like each of us do and drop off those stereotypes and they will be hired. I mean, I see it every day. But I think those are the inroads it's mostly education and getting to know individuals and the stereotypes fall away. For most, not all.
On the Origin and Growth of Self-Advocacy
Judge Frank: Well, I've been introduced to many self-advocates and I think I can say this without... you'll probably detect a little emotion in my voice... one of things that I do is... because this is the most kind of a profound example I can give...
First I want to say on the self advocacy, I don't know, I suspect its origins are from the individuals with disabilities themselves and their friends, loved ones and family... but it's again, it's to know and walk with our fellow human beings and citizens, and then to have them advocating on their own behalf, it really demands no matter what somebody's predisposition is -- all the stereotypes, the preconceived notions, the bias, the prejudice -- it all falls away.
The most... The best example I can give is I have had the privilege of having... not just speaking at a couple of self advocates' get-togethers, but they've visited here in the courthouse and I have met with a number of them at a number of the facilities where they work and live, and I would say that... I'll just take the most recent visit a few months ago here at the building...
One of the questions I'd ask college students, I ask high school students, and this day I asked the self advocates, "What are the most important rights to you? What's most important out of the Constitution?" I think that's almost word for word what I asked.
Now I am quite certain that before they came here they hadn't read the Universal Declaration of Humanity, Human Rights, that's in effect worldwide, but what they each said, each hand went up without any reservations; it's as if they knew more than all the rest of us because of what's here. (Points to his heart)
The first hand went up, "I want to be treated with respect." The next hand went up, "I want to be believed as a sexual assault victim, the victim of a crime." The next hand went up, "I want to live on my own." The next hand went up, "I wanted to be treated with kindness and without bias."
I mean over and over they gave more intelligent answers, as if they were familiar with the Constitution, and some of these International Declarations of Human Rights. They gave more intelligent answers than, than no offense, than 90% of the student groups we bring in here -- whether they're college students, high school students -- because they walk the walk. I haven't walked the walk.
And so, I still... and if you would have seen some of my staff, there was a tear or two coming down because they said, "You know we think get it, but we really don't."
I mean, where... these are these teaching moments, and actually I am so glad in this profile we're going to be doing, of me, nationally, they choose to leave that experience I had in, because it really has affected me. Just when I think I kind of understood and (had) been taught -- and I'd been taught plenty by all of these individuals -- the self advocacy as they went around the room, I'm saying, "who could ask for a better advocate than that?" because... and I can't capture it, because if you capture it... it isn't just the words, it's the commitment, it's the passion. But whoever, however this came up with this self-advocacy, they are making the rest of us pay attention. They're educating us.
Judge Frank: It's just like the day that I invited a group, and I have a picture in my chambers here... we'd been inviting all these student groups... I've told the story a number of times, I called my friend who is no longer living now -- this was years ago -- the Director of Special Education for the northern St. Louis County. I said "Why is it all these groups of citizens come in to visit the courthouse -- we give tours, we talk about rights and justice -- never see people with disabilities or special education students?" I should have known him well enough to have known that's all it would take. For the next few months, I had every special education group of students in my courtroom. I don't think we missed one school district in all of northern St. Louis County.
Then one day I get a call from a group of social workers and parents saying "We know we've heard about what's going on at the courthouse but there's a whole group that's been forgotten here through nobody's fault perhaps, adults with developmental disabilities. They've never been invited to your courthouse."
So in we came one day --and I have a picture of them because it was such a special day for me -- and well, the first thing that happens is, again these assumptions, these stereotypes... just because we communicate differently, that people don't understand, and they track the information the same as everyone else -- and in almost all cases they do -- so a young woman, probably I call it young now, because I'll be 60 next year, but a young woman raises her hand in her 30s and said "Well you've talked about equal justice, I'm someone that has... I have a disability. Does that mean I get the same rights as the wife of the President of the United States in the White House?" And I turned to her and said "That's exactly what it means."
Then on kind of a sad but very moving moment then -- this is something that gets a lot of... I think is getting more publicity thankfully today -- at the end of our tour and interview the social worker comes up to me privately and said "We have three women all with disabilities here in your group and they've been sexually harassed, sexually abused -- one has been raped -- they're getting no help from law enforcement or anyone else. Would you talk to them?"
And, truthfully, until that moment, even though I'd dealt with competency issues I'd never really thought about the fact that, as it turns out, nearly 85% of all women with developmental disabilities will be sexually harassed or abused during their lifetime.
What is Being Done to Reduce the Abuse?
Judge Frank: Well there's some projects underway, in fact again, thanks to... I would have to say -- because I don't want to leave the impression that suddenly people like me and other lawyers in the state and federal system have somehow suddenly got enlightened -- we've been trained by the disability justice community, the self-advocates, the people who are in these... and I keep... she'll chastise me when we're done, Colleen Wieck takes no credit for anything , but people like her, and the unsung heroes and heroines, I would say, they have not let us get off the hook.
They respectfully... they get these things in front of us and they don't go away. And they say "What are you doing about this," you know, "Does your walk follow the talk?" And they always do it in an appropriate way. Well, because of them, not because of any enlightenment that I came up with on my own one morning.
They've gone to county attorneys... well, there's a small group of us that are going to make a presentation later this year, and a state-wide seminar to all prosecutors, on competency issues as it relates to the not stereotyping, and they're going to prosecute and investigate. Because it's just not prosecutors, it's police, it's other people like that, law enforcement with no ill intentions, but the effect on the victim of the crime is the same.
We're going to be doing some training and a CLE (Continuing Legal Education) on competency issues as it affects the inability to prosecute, or refusal to investigate and prosecute, and one person who is making sure it's happening -- because he's an influence in this disability justice -- is Jim Backstrom, who has been the contact with me and others, so he... a group of us are going to go...
Lots of things like that are happening that weren't on anyone's radar less than just, I think, a few years ago.
How Have Self-Advocates Helped You?
Judge Frank: "You remind me and you teach me what my oath of office means about equal justice, and you make me a better person." Because you know we need reminders like that. Well look at, let's just tell you the journey we've been on, let's tell you about what we believe and what's important to us. And you're not with people and individuals like this without walking away... I get re-energized every time, and I wish I could say that about everybody else I know (laughs). No offense, but if you haven't met these individuals you are going to be... it'll be a good time.
What Does the Future Look Like for People with Disabilities?
Judge Frank: Well I'm optimistic both with the... because for a couple of reasons. One, I have seen the EEOC take a much more aggressive -- in a positive way -- role and I've seen, for example, civil divisions of our local U.S. Attorney's Office, that's why they're all involved when we talk about going out and speaking to the community. They've been going with me. So the head of that...
I don't know if it happened in other parts of the country, but it didn't happen a few years ago. More importantly, I think that even at that, with the changes, as the stereotypes fall -- and they fall when people are working in the community -- they're working in a building like this, they are living in the community -- you don't work and live and participate in serious things, fun things, with individuals with disabilities without learning something, and when that happens and the stereotypes fall away, equal opportunity increases, and maybe finally we're closer -- we're not there yet -- to that promise that the Constitution gives everybody of equal justice, equal opportunity.
And there's still a lot of discrimination and bias, and I think people have to understand I'm not talking about pointing a finger at someone and saying "You intentionally discriminated" -- that goes on, but much, much less -- it's acting on stereotypes and assumptions about individuals with disabilities, and to meet individuals and to have them working and living with us as all citizens have a right to do -- and they have been, for too many years, the forgotten minority -- they are the best advocates for themselves, and so I'm optimistic as I sit here today. I can look you straight in the face and say "I think we've come a long way... we've got a ways to go, but I'd say... it's mostly because of the disability justice community and those individuals with disabilities, they do not let us live each day in ignorance, and they're their own best advocates."
And when that happens -- and it's been happening -- changes are made. I would just tell you that is the reason why we're soon to have what's called a Minority Bar Summit. I happen to be President of the Federal Bar Association this year and one of my best friends -- maybe he is my best friend, Chief Judge Michael Davis of the Federal Court -- we're having what's called a Pro Se Bar Summit, and, as we speak, there is a one hour seminar being put together to train all these lawyers on disability discrimination. And we're saying, "You've all heard about race discrimination, other types of discrimination: We're here to educate you and train you and please don't use the word diverse anymore."
I am repeating what I have been told without using the words disability discrimination, and that is going to be a central piece of this summit. We're bringing all state, pro bono areas, referral services, federal, we're all coming together and that's going to be a centerpiece of that. Because for example: Who do you call if you're an individual that's poor and if you have a disability, or you're in another minority group, who do you call if you're being discriminated against?
The Future of Home Services, Employment and Security
Judge Frank: Well let's... since you raised the issue of the future, let's talk about... if I may say something, you know and I'm saying this irrespective of political parties and so forth – because, as a sitting judge, I can't talk politics, and I don't think this is -- if it's politics, it's not party politics, it's the parties will have to come to terms with it as government agencies will, but unfortunately the disability community is -- I'll use that phrase in a very respectful way -- they're vulnerable to the same thing and difficult economic times in non-mandated services as other minority groups -- is sometimes those non-mandated services are the first ones to get cut.
Health care, you know, dental care, there's a long waiting list of people, individuals with disabilities who the law gives them the privilege and the right to live on their own in independent living or a much less restrictive form of supervised living, people are on waiting lists because of processing.
So I still will remain optimistic, but I do worry about some of the budget cuts. Public transportation, as I mentioned earlier, that disproportionately affects individuals with disabilities and that has to be on people's radar screen because it just isn't depriving someone of a ride, it's depriving someone of a job, which is depriving someone of being a productive member of the community when they have all the skills to be.
And so I do worry about that piece, because I've watched, and it just isn't... it's services for... there's a lot of different people that get affected, just not those with disabilities. Chemical dependency services, people for those... there's a number of areas where those non-mandated services get cut, so why do I remain optimistic? Because of self advocates. Because of training and education, of reaching people like me and others who have a responsibility, as well as to lend a caring and responsible hand.
Well, the first web cast was done a few months ago on disability discrimination and more are going to follow. Two law schools now -- there was one, now there's two -- they have disability law societies. That wasn't even being discussed two years ago.