Robert D. Dinerstein

I am from East Meadow, Long Island, a bedroom community in Nassau County, New York.  Although I was not aware of it at the time, growing up with a younger sister with intellectual disability undoubtedly has influenced my career choices and passions. Also, coming of age during the height of the Vietnam War and the Watergate scandal, I was imbued with the sense of the importance of advocacy and the need to hold elected officials’ feet to the fire. And representing people with mental disabilities in my law school clinical program in the spring and summer of my first year of law school made a great impression on me with regard to the value of clinical legal education and the legal and societal barriers people with disabilities faced. 

I have been very fortunate in my life, but my professional work has exposed me to the many obstacles that people without the advantages I have had have faced. I think it is important to use whatever skills I have to assist and work with people, especially people with disabilities, to have the kinds of lives they desire.

I come from a musical family on my mother’s side (my great uncle was a band and orchestra leader in New York in the 1920s and 1930s, and later went to Hollywood where he wrote the musical score for several movies; my grandfather was also a pit orchestra leader). One thing I like to do is to put different words to 1960s and early 1970s rock-and-roll songs to capture the themes of conference and workshops I have attended.

I would like people to think that I was a hard worker with good judgment who listened well to others and was effective at persuading decision-makers to take positions and enact policies that enhanced the lives of people with disabilities, and that I did so with a sense of humility and respect for the lived experiences of others.

When I look back on my long career, I can see that much of my focus has been on getting people to recognize the ability of people with intellectual disability to pursue their dreams and articulate their interests notwithstanding the supposed limits on their capacity to do so. It is why I have focused so much on issues of consent and capacity, and specifically on practices such as supported decision making (whether as an alternative to guardianship or as embracing a set of principles within it) as one means of effectuating these goals.

Although I believe that we have made significant progress in this area, especially on the legislative front (with regard to supported decision making statutes in particular), we continue to struggle with obtaining accurate information on such basic things as how many people are under guardianship in the U.S. In addition, we continue to face the stigma associated with having a disability and the tendency of many well-meaning people to want to protect people with disabilities in a paternalistic manner rather than recognizing them as rights-holding individuals who should be able to make their own decisions in their own manner, with or without support.  Too often, disability discrimination is seen as unintentional and thus less worthy of criticism. Thirty-two years after the passage of the Americans with Disabilities Act, it is time to recognize that discrimination on the basis of disability is every bit as pernicious as that against other protected groups.

The key allies are people with disabilities themselves; families that support them; and the network of advocates (disability rights lawyers, advocates, friends, and others).  Some judges and legislators also are increasingly becoming sensitized to these issues. Media exposure can also provide important support for reform, as the recent case of Brittney Spears’s conservatorship has demonstrated. Being able to articulate at a common-sense level the notion that all of us need support, whether or not we have disabilities, but that we should be able to choose whether and from whom to obtain that support (and not have others substitute their judgment for ours) has been successful in addressing the inevitable obstacles that arise when calling into question long-established practices such as guardianship that are and have often been adopted without a great deal of critical analysis.

With my co-chair Lydia X. Z. Brown (and the able support of CRSJ staff), I have been conducting monthly virtual meetings of the Disability Rights Committee of the CRSJ Section. We discuss and strategize about current issues of discrimination against people with disabilities.  Among those issues are COVID-19 and disability discrimination (including most recently addressing anti-masking and anti-vaccine mandate legislation); supported decision making; the Supreme Court’s decision in Cummings v. Premier Rehab Keller, LLC, rejecting the availability of damages for emotional harm in cases brought under Section 504 of the Rehabilitation Act; and the Supreme Court’s grant of certiorari in Health and Hospital Corp. v. Talevski, challenging the availability of Section 1983 private rights of action under nursing home legislation and other Spending Clause statutes. 

On an individual level, I am writing a chapter on discrimination against people with disabilities arising from COVID-19 for the Section’s book on The Impact of Covid-19 on Civil Rights and Social Justice. And, as part of Chair Beth Whittenbury’s DEI initiative this year, I will be doing a presentation at the ABA Annual meeting on enhancing accessibility to and ensuring the availability of accommodations for people with disabilities in ABA programs and activities and the legal profession more generally.