Disability cause lawyers differ from other lawyers: they pursue strategic goals that go beyond the interests of individual clients—and hopefully align with the goals of the disability rights movement. They also differ from other actors in the movement by their focus on legal action. This specific position requires them to balance different interests in devising their legal strategy. I would like to highlight some of these difficult decisions through the example of MDAC v. Bulgaria, a case successfully promoting the right to inclusive education in which I was involved as lawyer for the Mental Disability Advocacy Center.
United in pursuing contradictory goals
Disability cause lawyers engaged in litigation need to balance competing interests. They must take into account the wishes of their individual clients—as attorneys, they in fact have a legal obligation to do so. They also have to pursue the interests of the disability rights movement, or at least the narrower constituency within the larger movement they are supporting. Lastly, they need to consider the interests of the organization and the donors who are financing the litigation work and who will help implement its results.
It is easier to build compromises around long-term visionary goals than on the specific steps to get there.
These different sets of interests sometimes do align, for example, with the efforts to provide better protection to victims of ill treatment1 or to eliminate plenary guardianship through litigation2. Any dissenters to those goals came from the opposition to the movement, not from within. But more often the individual clients’ interests don’t fully align with those of advocacy organizations. And sometimes it is hard to find unanimity in the movement itself about what is the best course of action. In the abstract, all involved might agree that forced psychiatric treatment should be abolished, but they might not agree on what the alternative should be, and even less on what action to take to achieve it. It is easier to build compromises around long-term visionary goals than on the specific steps to get there, which very often include difficult trade-offs.
Inclusive education—a goal for all?
Disability advocates broadly agree that inclusive education should be provided for all children with disabilities. Sadly, a lot of children with disabilities around the world are enrolled in substandard segregated special schools or have no access to education at all. The Mental Disability Advocacy Centre (MDAC), an international organization advocating for the rights of persons with disabilities, decided in 2006 to submit a collective complaint to the European Committee of Social Rights under the European Social Charter to highlight these problems and to put pressure on governments to implement their obligations in this area. They decided to initiate the case in Bulgaria because the conditions in that country were well-documented by the Bulgarian Helsinki Committee. The MDAC started wide-ranging consultations with its partners about how to build the case.
However, it quickly became clear that not all persons with disabilities supported the litigation. For instance, some groups are educated in schools that are segregated but not necessarily substandard, such as schools for the blind and for the deaf. Parents were afraid that outlawing these schools, while a victory on the principle, might in fact result in fewer resources for their children in the interim. As a result, a compromise was made to concentrate the litigation only on the situation of children with intellectual disabilities, who were the most neglected in the school system.
Including too many different issues in a case can be counterproductive, because the specific problems of various groups might be overlooked.
The children with intellectual disabilities were not all in the same situation. Some were institutionalized in homes for children with severe disabilities, where they received no education. Others were living in boarding schools or attending segregated special schools. There were also children living with their families: some were enrolled in special schools, others in mainstream schools, often not receiving adequate support and accommodations. While all these situations were in violation of international norms, they were violating the norms differently and required different remedies. The MDAC had to decide whether to represent all of these groups in the litigation, and if not all, then which ones.
There were good reasons to include all children in the complaint. That way the case could provide a remedy to all of them; excluding a child might result in their situation being overlooked in the follow-up reform process. There are examples of such large cases taken by advocacy organizations that cover several affected subgroups, the most well-known being D.H. and Others v. the Czech Republic, which challenged segregated education of Roma children.3 However, including too many different issues in a case can also be counterproductive, because the specific problems of various groups might be overlooked or mischaracterized in the decision. That could make implementation very problematic. For that reason, the lawyers decided that the case should concentrate on only one of the affected groups in order to give sufficient attention to their specific problems and adequately set the ground for follow-up implementation.
The next decision was the hardest one: Which group should be involved in the case? There were good reasons in favor of all of them: Children living with their families had the most social and political support, which is highly relevant for successful implementation. Children in special schools were the largest affected group across Europe; therefore their success might have the largest impact across the continent. Lastly, children in institutions were the most neglected and needed help the most.
The MDAC decided to concentrate on children in institutions, concluding that their situation was the most urgent. There was also a fear that such children would be forgotten if they were pushed to the end of the line. But it was not an easy decision to make. It was very difficult to explain to the other children and their representatives that they could not join the case. It is easy to evaluate in the abstract how the movement’s goals might be best pursued. It is much harder to convey to a person that they will not be supported because somebody else has a better chance of progressing the movement’s goals. These are often emotionally taxing discussions.
It is easy to evaluate in the abstract how the movement’s goals might be best pursued. It is much harder to convey to a person that they will not be supported.
Cause lawyers have some ways to mitigate these difficulties. They might offer, for example, that all those affected will eventually receive help by being involved in additional cases in the future. This happened in the present case. These promises are nevertheless uncertain: They depend on the lawyers’ future capacity and several other factors that lawyers may not control. The political or legal situation might change in a way that makes it impossible to initiate a case that could have been easily taken a few years before. Funding streams might dry up or be diverted to other areas. Staff might leave. Organizations might dissolve or change priorities. It is no wonder that in the uncertain world of human rights advocacy, all affected parties have a preference for receiving help immediately over a vague promise of being helped in the future.
The MDAC did promise to help all those affected, but because of changes in the organization’s structure and changes in Bulgaria, the next case concentrating on children in special schools was only initiated years later in Flanders.4
The case against Bulgaria was finally submitted in February 2007 on behalf of all children living in institutions for children with severe disabilities, who were previously declared “uneducable” by Bulgarian law. It resulted in a very successful decision on June 10, 2008. The European Committee of Social Rights held that the right to education of all affected children was violated. It rejected the government’s claim that the right to education is not justiciable because it is subject to progressive realization. It accepted the applicant’s argument about how to measure progress in similar situations, which has implications beyond the issue of education.
None of the above analyzed considerations are mentioned in the decision. Issues dropped, victims left behind, allies turned opponents, and alternative goals sacrificed rarely get a mention in decisions and therefore are not subject to academic analysis. Nevertheless, they do have an impact on advocacy, and cause lawyers must be aware of them to be successful in their work.
Some general lessons
The case highlighted some of the decisions that had to be made to balance the interests of specific victims against those of the movement. It is important to emphasize that very often there is no easy solution—all choices have advantages and disadvantages, often different ones for the various stakeholders. It is also hard to precisely evaluate the pros and cons of all the options. Discussing the likelihood of success and the possibilities of implementation includes estimating probabilities. Lawyers have expertise in this area, and for that reason they have a lot of power, often disproportionate power, to influence the decisions. They will have to ultimately decide what the legal strategy will be.
Lawyers should approach all ideas with an open mind, provide a full explanation, and offer alternatives outside of litigation.
With power comes responsibility. It might be easier to make the decision alone, but for the best outcome, it is crucial to involve other actors with different perspectives. Transparency is very important in the process: because some knowledge, for example, that is related to international law is only accessible to lawyers, they have to make clear to the participants what the real options are. Distorting the picture to arrive at a certain outcome is tempting, but it doesn’t have to lead to the best outcome. It often alienates allies who will play a crucial role in advocacy related to implementation. If the lawyers’ goal is indeed social change, they cannot ignore the voices of those who will make that change happen.
There might be good legal reasons that some of the strategies allies are advocating for cannot be pursued by litigation. But hastily dismissing such suggestions is a mistake. Lawyers should approach all ideas with an open mind, provide a full explanation, and offer alternatives outside of litigation. While the task at hand might be to build a case, some involved in the process might have other goals in mind. They will not take the discussion seriously if they feel that they are not taken seriously.
In my experience, the best approach is to make explicit the conflict of various interests to ourselves, the clients, and all other stakeholders.
Cause lawyers must be honest—including to themselves—about the different interests they must balance. Organizational and donor concerns, and the ability to attract funding and publicity, are not the noblest of causes, but they do influence the capacity to do this type of work. It is better to consider them openly than to pretend they don’t matter. For example, in my experience, lawyers often shy away from discussing who will be the attorney on record. When asked, they often pretend it doesn’t matter, as if such petty things were unworthy of discussion. For some lawyers it indeed doesn’t matter much. For others, a successful case raises their profile and leads to publicity, career opportunities, and potential access to further funding. If this is a consideration, discuss that openly or it may become a source of tension later. I have seen cases fall apart at advanced stages because the local lawyers and the international lawyers all pretended initially that they didn’t care who would be the attorney on record, and then none of them could let go once the case reached higher courts.
Some of these contradictions don’t have an easy answer. As guidance, in my experience, the best approach is to make explicit the conflict of various interests to ourselves, the clients, and all other stakeholders. We might not reach a decision everybody will like, but more transparency will overall lead to better decisions and cause less harm than trying to pretend that everybody in the movement wants to achieve the same goals through the same avenues.
János Fiala-Butora is a lecturer in international disability law at the Centre for Disability Law and Policy at the National University of Ireland Galway. He is also a senior researcher at the Institute for Legal Studies in Hungary and an affiliate with the Harvard Law School Project on Disability.