Mourning the passing and celebrating the life of Judge Wiley Y. Daniel

Image: photo of Black man, balding with a mustache and wire-framed glasses, wearing a suit, a flowered bow tie, and a matching vest.

Photo credit:  David Zalubowski, Special to The Denver Post

Yesterday, we celebrated the life and mourned the passing of Judge Wiley Y. Daniel, a Senior United States District Judge in the District of Colorado. I have been privileged to practice before Judge Daniel from early in my legal career to earlier this year, and each time it was a delightful experience. He was always prepared, knowledgeable, practical, respectful, and funny. He worked hard to put everyone in the courtroom at ease so we could get to the business at hand, for example, carefully establishing out-of-state counsel’s college football and basketball allegiances before proceeding.

In one of my earliest appearances before Judge Daniel, I was arguing for wheelchair access to Denver’s Red Rocks Amphitheatre. Opposing counsel observed that Red Rocks was built into the side of a steep mountain.  Judge Daniel responded by asking (something to the effect of — unlike the below, we didn’t get the transcript), “That’s all well and good, but why should the burden of that geography fall only on people with disabilities?”  He has, from the get go, understood the fundamental premise of disability civil rights.

In June, 2018, we again appeared before Judge Daniel on the question of wheelchair access to Red Rocks, though this time it was to seek final approval of a class action settlement addressing ticketing and scalping problems that had excluded people with disabilities. Final approval hearings are always upbeat events, as the parties have settled and appear before the judge jointly requesting his blessing of the settlement. Judge Daniel quizzed us on the details of the agreement, indicated his intent to approve it, and then took the opportunity to talk about civil rights and disability rights:

I have had occasion, both as a lawyer, and more importantly as a Judge, to see the evolution of the [ADA]. … [T]here have been strides to make accessibility more an important ingredient of public access to facilities, transportation modes and anything else. So what I’m really saying is, since I have been around a long time, I’m pleased that we’re making strides, but I’m also disappointed that lawsuits have to be filed before anybody, such as the City and County of Denver or other public bodies have to do the right thing, and so I hope that this outcome here can be another further example of how the law can work in a proactive way, but hopefully it also sends a message that even without a lawsuit, I think entities such as City and County of Denver and other public entities have an obligation to, on their own, figure out what should be done to make it easier, rather than harder, for folks with disabilities to have the same access that everybody else has.

[T]hat’s why one of the wonders of being a practicing attorney is [that] practicing attorneys, if they are interested in social justice, if they are interested in being social engineers for justice, can still play a vital role in moving the needle more quickly.

[A]ll of that is what I am uplifting and raising as an illustration [that] we are making progress, but we’re a long way from perfection, and I say that parallels some of the issues that still exist in this country on racial issues, where we have civil rights laws that go back to the mid 60s, but we still have, today, the clear rise of white supremacy, we clearly have nationalists that are running for congress today, running hateful statements and awful things, but they will get votes. And so I think our country has a long way to go to, in effect, liberate us from the battles that have been in existence and will remain in existence, and to the extent that courts can help resolve them, I’m just gratified that I can play some small role in this, and hopefully we will reach a point, at some point, where these laws will become truly an integral part of the fabric of our life.

 Judge Daniel, we are surpassingly gratified that you played such a large role in advancing civil rights in Colorado and improving the fabric of our life. We miss you very much.

[Apologies for cross-posting.]

Tony Kronman: Black Lives Do Not In Fact Matter. 

In 2017, Yale University renamed Calhoun College (at Yale, they call dormitories “residential colleges” because … Yale) after Grace Murray Hopper, a “trailblazing computer scientist, brilliant mathematician and teacher, and dedicated public servant.”  John C. Calhoun was a prominent Yale alumnus and U.S. Senator and, of course, passionate defender of slavery as a positive good.

Yale Law professor and former dean Anthony Kronman objects, explaining that, in his view:

Hitler and Stalin would have to come off buildings, but he says “less egregious” cases like Calhoun are different.

This is literally valuing the millions of white lives lost to the Holocaust and to Stalinism more highly than the millions of black lives lost to American slavery. And by “literally,” I literally mean “literally.”

Kronman accuses those who supported renaming a Yale college (that is, a dorm) — discarding the name of a prominent supporter of slavery for the name of a pioneering female scientist — of the sort of historical revisionism practiced by the Soviet Politburo.

Kronman says that colleges and universities have a responsibility to “cultivate the capacity for enduring the moral ambiguities of life.”

What in the absolute fuck is morally ambiguous about slavery?  It is precisely this sort of academic arrogance that actively devalues and excludes students of color and prevents real intellectual discussion and evolution. It’s also requires a special sort of intellectual laziness to easily acknowledge other countries’ monsters while being unwilling to face up to our own.

I’m ashamed of my school’s former dean and proud of Prof. John Fabian Witt for his excellent point-by-point demolition of Prof. Kronman’s indefensible defense of the defense of slavery.

 

White People Listserv Freakout: A Template

White Person:  [Expresses demonstrably racist/sexist/ableist/transmisiast/nativist view.]

Reasoned Response:  Here is why your *ist views  are wrong.

White Person:  You just called me a *ist!  You hurt my feelings! [Optional: list of all the wonderful things I’ve done for BIPOC/disabled/female/LGBTQ* people.]

White Chorus:  You hurt White Person’s feelings!  He’s such a nice guy!  He has done so many good things for BIPOC/disabled/female/LGBTQ* people!  Two wrongs don’t make a right!  Both sides need to apologize!

White Apologist:  Reasoned Response said something negative about white people.  That’s just like saying something negative about BIPOC/disabled/female/LGBTQ*/etc people.

Reasoned Response:  No, actually, *ism is about power differentials.

Discussion Police:  We’ve been talking about this for a whole day.  It’s annoying.  A civil rights listserv is no place to discuss *ism.  Time to end the discussion.

Rinse.  Repeat.

Remembering Carrie

Two white-appearing women with cameras and other photo gear. Carrie, on the left, in a denim skirt and black t-shirt using a wheelchair. Amy, on the right, standing, wearing a beige fleece, vest, and jeans. My friend — and multi-talented attorney, activist, and mother — passed last February.  We celebrated her life on Saturday.  These were my words.


When I sat down to write these words, I knew I would be able to plagiarize a lot of my own previous words. I’ve had the privilege of introducing Carrie at various events and presenting awards to her on a number of occasions.

So I did what any nerd would do: searched my computer for documents mentioning Carrie.

As I anticipated, I found the words I had said introducing her for a Colorado Cross-Disability Coalition award, and later an award from our organization, the Civil Rights Education and Enforcement Center, as well as the words I said to introduce her as a candidate for Windsor town board. I’ll reuse some of them in a sec.

But I also found a long list of other documents that show the central role Carrie played in my personal and professional life for the past 20 years.  For example:

  • Lucas v. Iliff – the case on which my husband, Tim Fox, and I first represented Carrie and got to know her, asking her divinity school for accommodations.
  • Lucas v. Kmart – and our tribute to her when that case was recognized by the Impact Fund as the largest disability public accommodations case to date (and possibly through the present), making Kmart stores nationwide accessible to people using wheelchairs.
  • I also found the photos we took for the Impact Fund’s event. Sadly, they didn’t use the one of Carrie, Tim, Kevin Williams, and me all playing poker around our conference table.
  • Lucas v. DU and Lucas v. DU. Or in the words of one of Carrie’s best press releases, “Oops, they did it again!”
  • Carrie’s adoption reference.
  • Carrie’s dumpling sauce.
  • A spreadsheet called “Carrie Lucas Internship Timesheet” – when she interned at our law firm as a law student, prepared court-ready pleadings, and of course taught us more than we taught her.
  • Lucas v. Colorado Rockies: now you can buy accessible seats behind home plate without buying season tickets.
  • Carrie’s EJW photo. After she was awarded the prestigious Equal Justice Works fellowship, I had the privilege of taking the official photo, while she was wearing – of all things – a hat my mother made her.
  • Her first case in federal court, for which we drafted an amicus brief. (Amicus means friend in Latin – never was it truer than on briefs we wrote to support Carrie’s cases.) I also found the brief from the case last year in which she supported us as an amicus, along with Julie Farrar, who just spoke, and Corbett, who is online.
  • The published case of Kerr v. Heather Gardens, setting an obscure but important ADA precedent. Every time I cite it, I recognize how Carrie still helps us and so many other lawyers in so many fields.
  • Lucas v. City and County of Denver: now you can buy accessible tickets to Red Rocks that don’t cost $5,000 on StubHub.
  • The many cases on which we co-counseled, including two in a row against the City of Denver for accommodations for Deaf detainees. (Oops, they did it again!)
  • A long messaging discussion – which I saved, God knows why – about why it is OK to have breakfast for dinner and dinner for breakfast, but NOT to mix breakfast food and dinner food, reaching the consensus that ketchup on eggs was a desecration.
  • A downloaded copy of “15 Theses – A Protest to Challenge the Church on Disability,” Carrie’s blog post on Reformation Day, in which she set forth 15 specific, biblically-sourced ways in which the Church needed to become more welcoming to disabled people. (She adds:  “I sketched these out during worship last week, but give me time, I could come up with 95.”)  I highly recommend this post to people of all faiths or none.

Carrie (purple dress; short hair; wheelchair) playing with a young golden retriever who has his paws on her knees.

Carrie was the get-shit-donest person I know. We lawyers can be a cautious bunch — always arguing this side and that.  I can recall many occasions when — confronting injustice or simply something that needed doing — while the rest of us were still pondering, planning, and arguing about the best route forward, we would discover that Carrie had already acted.

She saw something that needed to be done and she did it.  One of the best examples of this is when she found out her niece faced the possibility of foster care:  she moved immediately to adopt her.

Then realizing the obstacles she faced as a disabled woman trying to adopt, she made the rights of parents with disabilities the focus of her legal education and career.

When Carrie started her nonprofit, Disabled Parents’ Rights, the number of lawyers in the country who were addressing these issues was in the low- to mid-single-digits.  She quickly became an expert in this crucial area, and was a sought-after speaker and teacher for other lawyers, advocates, and even judges.

You’ll hear a lot about all of her many roles:  mother, lawyer, advocate, arrestee, photographer, cook.  She was all these things.  Then we’d be chatting and she’d say something like, “we’re going to see Hamilton, so I’m making Hamilton skirts for myself and my daughters.”  Or “I have some time over Christmas break — I’ve decided to learn the hammer dulcimer.”

She was the person I always turned to when I need an answer:  What’s the right case to cite?  Who should I vote for?  What does the trinity mean? How do I format a document in Word without throwing my laptop out the window?  She answered these and so many others.

When we gave her the CREEC award a few years ago, we summed up Carrie’s intersectional work and identities by saying: “she may be the only wheelchair-using Latina with a bumper sticker that reads ‘just another disabled lesbian for Christ,’ dressed in camo, driving her trak-chair into the wilderness for the perfect photo.

Carrie was our client, intern, colleague, and co-counsel, but most important to me, she was my dear friend.  She had just the right combination of wisdom, compassion, sarcasm, and love, and I miss her profoundly.

Cartoon drawing of Carrie as a superhero, with an orange cape.

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Thank you for your email.  Unfortunately, I will be unavailable from July 19, 2019 until July 19, 3019.  I am busy, grumpy, and antisocial.  If you are emailing for any of the following reasons, do not expect a reply before our sun goes supernova:  picking my brain, having a networking coffee, or asking me which provision of the ADA regulations applies to your case before you have even checked Westlaw.  If you are asking me to tell you which provision of the ADA regulations applies to your case but you have previously told me you “don’t believe in lawsuits,” please close the email and go fuck yourself.  The following emails may be returned with reasonable promptness:  close friends offering to listen to me whine about my cases; offers to buy me beer and/or dumplings; and Mom.

Estrangement

Image: black and white photo of my brother and me (two white kids) ages 6 and 8. We’re sitting on a fence. I’m on the left, short brown hair, t-shirt and shorts. He’s on the right, short lighter hair, sweater and shorts. My arm is around his shoulders.

Now that we’re here, it’s obvious we were always going to be here.

I come from a family of cutter-offers. Most famously, my great uncles — my grandmother’s brothers — Uncle Bubble and Uncle Nippy. I also come from a family in which grown men are called “Nippy” and “Bubble.” At least on my father’s side. On my mother’s side, my great uncles were Max, Ben, Jerry, Bafe, and Joseph.

The Bubble/Nippy split was legendary: they had summer homes across the street from each other and didn’t speak to each other for the last several decades of Bubble’s life. Since they were born in the 1910s and died in 1970 and 1984, I can’t ask them why. Indeed, due to further cutting off — Bubble would not speak to my father — I likely would not have been successful had I tried to ask.

While Nippy and Bubble provided the template cut-off, my father’s family had other variations. My great-grandfather did not divorce his wife, but installed her in a separate house in the Maine coastal village my family invaded each summer. Later, Bubble’s children would cut off from my father and even later — each for a different reason — from my two uncles. Nippy’s three sons had overlapping and complex cut-offs that I never really understood.

There were also less absolute distancings. When my grandmother married my grandfather — a well-pedigreed fuck-up — they moved from the eastern US to the middle of nowhere Wyoming, so that my grandfather could run a dude ranch, one of his more colorful failures. He left after my father was born, came back, and left again for good when my uncle was born. Not long after, he volunteered — at the age of 30-something — for the Army and managed to get himself sent to Europe toward the end of WWII. Many brave adventures ensued, none of which involved being a father to my father and uncle. Later, after my grandmother remarried, my father — considered the problem child in the new family constellation — was sent to boarding school in the same city in which the family — mother, step-father, brother, half-brother — lived.

So I come from a long paternal line of cutter-offers and distancers. My father and I talked about this. A lot. Constantly. Ad nauseam. After my mother started heading toward divorce in the early 1970s, Dad started getting therapy based on Family Systems Theory. This theory helps you figure yourself out by the patterns of behavior — specifically closeness and distance — in your immediate and extended family. As part of his therapy — whether self-directed self-discovery, or assigned homework I was never clear — he sought out and (re)established connections to dozens of random relatives near and far. We found, among his papers, reams of Family Systems charts from napkin scribbles to wall-size pieces of taped-together butcher paper. Having grabbed ahold of Family Systems Theory like a lifeline — and having been sent away from his family as a young teen — my father viewed cutting off as the ultimate failing. He worked his ass off to build bridges, among others to Uncle Bubble’s family, who would not only not talk to him but would also, as we discovered in his papers, return his letters unopened, having written in thick magic marker “RETURN: REFUSED.”

Not all of his family outreach failed. He built a relationship with the father who had abandoned the family in his childhood, and with whom he had had only sporadic contact for the ensuing 30 years. Granddaddy ultimately moved in with my father for the last 24 years of his life — a very bickery, Odd Couple sort of sitcom. It is my impression that Dad’s relationships with his brother and half-brother also improved over this period. They had never been estranged, but I think he — and they — made an effort to bridge some pretty considerable gaps.

In “Story of Your Life” — the short story on which the movie “Arrival” was based — the hero, a linguistics professor (!!!), is tasked with learning and documenting the language of a species of alien — spaceships orbiting the earth and mirror-like devices permitting communication. The linguist figures out that their written language is not linear — as is most human writing — but rather requires the writer to have the entire sentence composed with the first stroke. She uses the term “semagram” to mean, roughly, “word,” and observes:

Comparing that initial stroke with the completed sentence, I realized that the stroke participated in several different clauses of the message. … Yet this stroke was a single continuous line, and it was the first one that [the alien] wrote. That meant the [alien] had to know how the entire sentence would be laid out before it could write the very first stroke. The other strokes in the sentence also traversed several clauses, making them so interconnected that none could be removed without redesigning the entire sentence. The [aliens] didn’t write a sentence one semagram at a time; they built it out of strokes irrespective of individual semagrams.

As she learns this written language, she finds it changing the way she thinks. “As I grew more fluent, semagraphic designs would appear fully formed, articulating even complex ideas all at once.” She realizes that, for the aliens, events are not sequential and causal, but coexisting and teleological. After she learns the alien’s written language, she finds that

new memories fell into place like gigantic blocks, each one measuring years in duration, and though they didn’t arrive in order or land contiguously, they soon composed a period of five decades. It is the period during which I know [the alien’s language] well enough to think in it, starting during my interviews with [the aliens], and ending with my death. … [O]ccasionally I have glimpses when [the alien language] truly reigns, and I experience past and future all at once. … I perceive — during those glimpses — that entire epoch as a simultaneity.

My brother and I got along well until late 2017. To that point, we had weathered our parents’ divorce and my father’s death, supporting each other, and sharing parent-based in-jokes, gossip about the larger family, remedies for nasal allergies, and adoration of and admiration for his kids, my niece and nephew. I always thought one of the reasons we got on so well was the utter lack of sibling rivalry which was based, in turn, on how different we were. Though we are relatively close in age — I’m 21 months older — we are different genders, which I think takes away a quick 80-90% of any sort of rivalry. We are different in most other respects, too: he excelled in science; I enjoyed languages. He was popular and outgoing; I was introverted and nerdy. I liked traveling and spent much of my late teens and early 20s living in Taiwan and traveling in Asia; he spent those years in Philadelphia and Delaware. I got a linguistics degree and then went to law school; he got a couple of chemical engineering degrees (B.S.; Ph.D.) and then went to business school. There was nothing we really competed in, which allowed us to support each other effortlessly in our respective worlds.

We are also politically opposite. Though we were both raised by the same folk-music-loving, Adlai-Stevenson-voting liberals, he started heading rightward in college, and ended up a Trump supporter by 2016. I know this only secondhand as we ceased being able to talk about politics mid-Bush-43, when he suggested lack of support for the Iraq war made one unpatriotic. His political views make me sad, but we ended up with an unspoken understanding that we would just stay off the topic, and trundled on.

Because of my father’s preoccupation with family systems — which started when we were approximately 12 and 10 — we heard a lot about our extended family and a lot about cutting off. We listened and watched and discussed the siblings and cousins who cut off, as well as those who sued each other over use of the common tennis courts, yelled at other people’s kids to stay off their docks, drove over each other’s lawns, and sent angry letters about microscopic differences in the shared use of a gorgeous piece of the Maine coast that at least I never had the patience to understand. And of course we knew The Legend of Bubble and Nippy — the touchstone/template/ur-cutoff.

So well did we know it, and so much a template was it, that when Bruce wrote me, just before our aunt’s funeral in December, 2017, “Not sure if we had our Nippy/Bubble moment or not,” I knew what he was talking about, and he knew I’d know. Then, 10 months later, there it was: he decided to “cut off all contact.”

I’m intentionally omitting the reason he does not want to talk to me. It would require a separate — likely tedious and long-winded — discussion, and honestly, given our family teleology, I’m not sure it matters. I will say that it was recursive or self-referential: a cut-off about a cut-off.

One of my father’s Family Systems mantras was that it takes two sides to cut-off, and that he refused to participate. I’ve expressed the same to my brother — that I do not want to cut-off; that we can resume communication at any time; that I love him — but as the returned letters showed my father, one person can be pretty damned effective at cutting off.

So I sit here, stunned and puzzled that this is where we are, yet feeling like we were always going to be here, the sentence written in our Family System before we were born. In the middle of the story, watching it sequentially, I would never have imagined the events that would get us here. If you had asked either of us in, say, 1985, I think we’d have laughed heartily at the idea that we would ever tread the ridiculous and over-analyzed path of our great uncles.

In the story, the linguist struggles with the meaning of free will in a thought system that understands history as coexisting and teleological rather than sequential and causal. Where, too, is the free will in a Family System? I’ve spent over 45 years thinking about our Family System, certain that I had the free will to escape the patterns. Now that we’re here, though, it feels like the entire sentence — one long run-on sentence from 1962 to 2018, one giant semagram — was always written this way.

***

Coda: This post focuses on the cut-offs. Many family members are moving away from some of the more destructive patterns, and I treasure my relationships with my aunts, uncles, and cousins.

 

 

 

 

 

 

 

Actions have consequences, or, how I responded to a MAGAing business associate.

Text conversation with a white guy I used to do business with:

Contractor: [discussion of potential project].  MAGA!

Me: Um, please tell me you don’t mean “MAGA.”  Srsly

Not funny.

I thought that might get a response from U.

But I have to ask:  are you a Trump supporter?

I am a supporter of the Constitution, less government
and the value of the individual.  I am not a supporter of
identity politics and victim culture.

Did you vote for Trump?  Will you vote for him in 2020?

Yes and yes

What is my alternative?

I’m sorry, I can’t work with you.  I respect your skills,
but I can’t work with someone who supports an entire
movement inimical to everything I believe in.
I appreciate your past work, but I’m afraid that’s it.

But I vote in CA, so my vote is completely wasted/futile.

Well I’m sorry to hear that.

Yeah, me too.

Signing off.

I answered your question: U didn’t answer mine.
What is my alternative?

You could do what many principled republicans do/did:  not vote.
STand up for your small government whatever,
but not vote for someone who is an admitted harasser,
who is working hard to oppress immigrants,
lgbtq people, muslims, and people with disabilities.

It’s not red vs. blue.  It’s a racist, nativist
movement that scares me for our future.

So:  actions have consequences.  Sorry.

I don’t see him that way, and that’s not what I support.

Those are his explicit policies.  He enacted a muslim ban.
He is banning trans people from serving our country.
He is turning back asylum seekers at teh border.

But thank U for answering my question.

it’s not what you may or may not see; it’s his policy.

So, yes, that is my answer.