To the National Council - Part 1

The National Council on Disability and My Unlikely Gambit

Seemingly small or trivial occurrences can have profound consequences. An over-dinner comment of Lyn Leone, a friend in South Bend – about her lawyer brother’s pro bono assistance of residents of mental health facilities – indirectly led me to the National Center for Law and the Handicapped and ultimately to the field of disability rights law. A phone call out of the blue from a guy named Chris Bell led me to the U.S. Commission on Civil Rights and co-authorship of Accommodating the Spectrum of Individual Abilities. In 1984, what turned out to be my escape hatch from a deteriorating job situation at the Civil Rights Commission arrived unexpectedly, in the form of a piece of a paper that landed unceremoniously on my desk. I am not sure who sent it to me – possibly one of the staff in the Congressional Affairs Unit of the Commission, or perhaps a colleague in the Office of the General Counsel – but it was a part of a newly enacted federal law, the Rehabilitation Amendments of 1984.

The heading on the top of the paper read “Part D – National Council” and the first section was titled “Administrative Amendment,” neither of which was much of an attention-grabber. The document was only about a page-and-a-half long. Before I could toss it aside onto a pile of low-priority papers that I vaguely intended to (but probably never would) review someday, the following words in the second subsection happened to catch my eye: “the National Council on the Handicapped shall be an independent agency within the Federal Government ....” The next few provisions clarified that the legislation was elevating this “National Council on the Handicapped” from being a relatively minor advisory group (that I had never heard of) in the Department of Education to being a full-fledged independent federal agency like the U.S. Commission on Civil Rights.

I read on, curious to find out what the National Council was supposed to do. The second section of the new law was headed “Duties” and it directed the Council to do several things I found exciting:

• review “all statutes pertaining to Federal programs” that assist individuals with disabilities;
• “assess the extent to which such programs provide incentives or disincentives to the establishment of community-based services for [individuals with disabilities], promote the full integration of such individuals in the community, in schools, and in the workplace, and contribute to the independence and dignity of such individuals”;
• recommend to the President and the Congress legislative proposals for increasing incentives and eliminating disincentives in Federal programs; and
• prepare and submit a final report to the President and to the Congress not later than February 1, 1986, on the review, assessment, and recommendations required by this subsection.

My eyes grew wide as I salivated over the idea of methodically reviewing all federal laws affecting people with disabilities; evaluating the extent to which they promoted integration, independence, and dignity; and making recommendations and legislative proposals to the President and Congress, culminating in a formal report to be issued within two years. Having completed the Accommodating the Spectrum report (without legislative recommendations) in September of the prior year, and with Chris and I just having gotten our Statutory Blueprint article (with legislative proposals) published, the mission and duties of the National Council seemed like an ideal next gig. Under my breath I yelled, “I should work there!” After doing a bit of intelligence-gathering about the Council and its personnel, I put in a call, and followed-up in writing with then Executive Director Harvey Hirschi, outlining my credentials and asking for a job with the reconfigured agency. In my letter, I gushed (but felt sincerely) that the agency had “been given a most worthwhile and exciting, albeit immense, charge,” and declared that “I would be very interested in joining your staff as it undertakes this challenging mission.” My initial effort to wrangle a place at the National Council proved fruitless, however. The statutory reconstitution of the Council was accompanied by changes in its leadership and location. President Reagan named Sandra Swift Parrino, formerly a vice chairperson of the Council, to be chairperson in its new incarnation. In June 1984, John Doyle, a protégé and staff person of Senator Lowell Weicker, chairman of the Senate Subcommittee on the Handicapped, took a six-month leave of absence from his position as the Subcommittee’s Majority Staff Director to become the acting Executive Director of the Council. As he was making his transition to the Council, Doyle learned that the St. Lawrence Seaway Commission was moving out of some choice office space on the eighth floor of the FAA Building on Independence Avenue, across the street from the Hirshhorn Museum on the National Mall. He used his influence with the Senate Appropriations Committee to get the vacated space for the Council, and soon Council quarters were moved from a one-room office in the back basement of the Department of Education's Switzer Building to the more commodious and comfortable suite of offices at 800 Independence Avenue, SW.[1] During the transitions and move my letter was apparently lost in the shuffle, as I never received any response.

I was unable to learn much about the hiring plans of the re-minted Council for several months until finally I heard that announcements of job openings would be coming out in the fall. Then, all of a sudden, I received copies of four such announcements – termed “Career Opportunity Announcements” in the federal government – posted on September 5, 1984, with applications due by September 25. As I scanned the announcements, my excitement soon turned to consternation. The four positions being filled were “Public Affairs Specialist,” “Adult Services Specialist,” “Children’s Services Specialist,” and “Research Specialist.” The Council, directed to review all federal laws and programs affecting people with disabilities and to develop legislative proposals for the Congress and President, did not have a slot for a lawyer. How could the agency make sense of the maze of existing federal laws and propose more effective ones without having staff members with a legal background? To the extent that many of the critical battles for establishment and enforcement of rights of people with disabilities were taking place in the courts, how could federal legislation be crafted to further them without a sophisticated understanding of the judicial and legislative systems? To fulfill the lofty objectives Congress had assigned to the Council, I considered it essential that the agency have at least one attorney, or preferably a group of them, to add a legal perspective. I was dumbfounded and deeply disappointed that the Council did not seem to have recognized that need.

In an act of some desperation, I decided not to give up without at least trying, so I pored over the job descriptions to see if there were any I might have a chance of qualifying for. I decided that the best chance, still a long shot, lay with the Research Specialist position, which was also the only one of the four at a government classification level (GS-14) that would not represent a demotion from the job I was currently in and would provide what I considered an appropriate salary. The duties detailed in the announcement made it clear that the Research Specialist was envisioned as focusing on “disability-related research,” including primarily federally funded “basic and applied research,” particularly research funded or conducted by the Office of Special Education and Rehabilitative Services in the Department of Education. Admittedly, my credentials and experience made that a considerable stretch, but I told myself that I had done lots of legal research and that I had performed quite a bit of social science research in developing the casebook and, especially, in finding, digesting, and marshalling data for the Accommodating the Spectrum report. With that dubious rationale, I threw together the necessary paperwork and applied for the position. I stressed that I had been the “Director of Research” at the Developmental Disabilities Law Project (I had held that title during the period when I was working on the casebook), and provided a lengthy list of disability topics I had researched at the Civil Rights Commission. As writing samples, I listed the casebook and Accommodating the Spectrum, which seemed impressive to me.

Hoping to find out more about the plans and timeframe of the Council, I telephoned the chairperson, Sandy Parrino, and the vice chairperson, Justin Dart, and learned that the Council had hired a guy named Lex Frieden, an independent living pioneer and scholar from Texas, to be executive director. Lex was to begin the job in December and would make the decisions about the new staff hires. My thoughts about the need for legal expertise at the Council were verified early in 1985, when a group of seven or eight disability rights lawyers in the DC area arranged a lunch meeting with Lex and asked me to attend. The meeting was a chance to size up the new director and offer him suggestions and advice about the role we hoped the Council might play in advocating for important federal disability initiatives. When I arrived I was introduced to Lex, a blondish man who sat up tall in his electric wheelchair. I later learned that he was in his mid-thirties – less than a year younger than me – but he personified what people call “boyish good looks,” appearing much younger. He spoke with a slight Oklahoma drawl and had a twinkle in his eye. As we lunched, we offered Lex various ideas about protecting or improving existing federal programs and laws, such as those addressing special education, deinstitutionalization, and developmental disabilities programs, and for strengthening legal remedies. I believe that I made a general suggestion about the need for expanding the coverage and clarifying the elements of federal disability nondiscrimination laws.

At some point, Lex admitted that none of the Council members was in the legal profession, nor did any of them have any particular expertise regarding the crafting of federal legislation or the intricacies of the process by which it is enacted. The conversation quickly turned to the need for the Council to have legal expertise on staff. Lex was receptive to the idea, but told the group about the four staff positions the Council had authorized, none of which was an attorney position. I already knew this, but the rest of the group let out a collective gasp. Lex added that the application period for the positions had already closed, tying his hands about whom he could hire. Then, with a half-smile, he added a farfetched afterthought, “Of course, if someone who is a lawyer has applied for one of the four positions, I would be glad to consider hiring that person.”

For the moment, I kept quiet, but inside I felt like the clichéd cat that had swallowed the canary – I was most likely the only lawyer who had a shot at a job with the Council. As the meeting broke up, I found a chance to catch Lex aside for a moment and told him that I had, in fact, applied for the Research Specialist position. He raised his eyebrows and grinned a little, but only said “That’s very interesting.”

Toward the end of February 1985, I received a call from Marilynne Gisin, the Executive Assistant at the Council, asking me to come to Lex’s new office in the FAA building for a job interview. During the interview, I tried, of course, to put my best foot forward, and Lex was personable and charming. Obviously smart and confident, he also projected an engaging “aw shucks” kind of down-to-earth-ness. He seemed impressed by my background and views, but did not give away much about my chances. I held my breath for a few weeks, before I got the very welcome news that I was to join the Council’s staff starting on March 27, 1985. My unlikely ploy had worked.

Continue on to Part 2: Lex Frieden and His Initial Council Staff Team

[1] CT Disabilities Rights Pioneer – Phyllis Zlotnick: John Doyle Interview, by Leslie Tervo, https://sites.google.com/site/phylliszlotnick/announcements/john-doyle-interview