College of Law > About > News > MarkWeber
March 13, 2020 /
Posted in: Faculty News /
Recently named to the Executive Committee of the Disability Law Section of the Association of American Law Schools (AALS), Professor Mark Weber has extensive experience in disability rights and complex tort litigation. You can read his scholarship on SSRN and on the DePaul Publication Archives.
Q. Can you discuss your career before coming to DePaul?
I earned my law degree from Yale and undergraduate [degree] from Columbia University. After that, I worked for the Legal Assistance Foundation of Chicago (now Legal Aid Chicago). I worked there for a couple of years before joining the Legal Aid Clinic at the University of Chicago Law School. I was there for about six years before coming to DePaul in 1986.
I came to DePaul to explore classroom teaching, which I hadn't done previously. I had been a clinical teacher but hadn't done classroom teaching, and it seemed like a good opportunity. I'd been exposed to people who went to DePaul, knew some faculty members, and was aware of the folks who were doing clinical work here, so I had some familiarity with the school.
Since starting at DePaul, I've taught Civil Procedure, Advanced Civil Procedure, Remedies and Evidence. For a while, I taught Constitutional Law. I moved into teaching Torts in the 90s. My current mix includes Federal Courts, Civil Rights, Disability Law and related topics.
Q. How did you get into Disability Law?
I had some personal experience. I have a cousin who has an intellectual disability. When I was doing legal aid work, I was representing some people with disability discrimination related claims. When I was at the University of Chicago, one of the other lawyers left, and I effectively inherited two cases under what was then the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act). That covered disputes with public schools over the services to be provided to kids with disabilities.
That developed into a practice that was more focused on disability than anything else. I did some cases having to do with other forms of disability related programs or benefits, including supplemental security income eligibility hearings and disputes under the Vocational Services Program. I discovered those cases were actually quite good for students. They could master the area well enough to be heavily involved and to be self-directed in their clinical work.
Q. What has been some of your biggest accomplishments at DePaul?
It's been great to have been able to develop a disability discrimination course. It's not offered often, but I've had some very enthusiastic students in it, so that's been quite rewarding. I've had the opportunity to develop a lot of scholarship and to get the word out on things. I am active in pro bono work. I often help lawyers, legal aid lawyers and individuals in organizations that provide legal representation to people with disabilities on their cases.
Q. What are some of the biggest, most common issues you've seen?
They're all over the place. Among the more recent things I've been talking with people about is class action status in disability discrimination cases. There's case law that makes it somewhat more difficult for classes to proceed in disability claims. Courts have adopted arguments that because disability is such an individual matter and that there are so many variations, that class actions aren't a suitable means to address either an employer's policy or a governmental policy. But it seems clear that the drafters of the Americans with Disabilities Act (ADA) really did intend for the statute to be enforced by class action litigation, when appropriate.
Q. What are some of your more recent projects?
The project I'm currently involved in deals with the exclusion from eligibility for immigration status for people who lack assets or income, as well as for people who have disabilities as a disqualifying factor under what's called the Public Charge Provision. The government over the past year or so has put out a regulation that changed the existing interpretation of that provision and made it much more difficult for people to get immigrant visas or to get their status adjusted to that of an immigrant who'd be able to qualify for permanent residency and ultimately citizenship. It places an asset screen and an income screen and disqualifies people if they've received public benefits within a specified period and extends that not only to cash benefits, but also to in-kind benefits, which would include things like food stamps or Medicaid, which had previously not been considered a disqualifying factor.
Disability is specifically now listed as something that would be a potentially disqualifying factor in the other mix of things that go into the Public Charge calculation. There have been efforts to litigate that. There had been a nationwide injunction out of a Second Circuit case, but that just got stayed by the US Supreme Court, so the regulation is really going into effect at this point.
I initially wrote a comment when the regulation was still just a proposed regulation and coordinated with some other individuals on that project. I currently have an article that's on the internet in draft form [“Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby," Ariz. St. L.J. (forthcoming 2020)] that tries to lay out the idea that what the government is doing is contrary to its obligations under the Disability Discrimination Law that applies to federal government activity. The Immigration Clinic and its students under Professor Sioban Albiol also have worked actively on the public charge topic.
Q. How has the legal profession changed their views towards Disability Law since you've started doing it?
The number of lawyers drawn to the practice of Disability Law/Disability Discrimination Law has increased significantly in the period that I've been working in the field. For a while, employment cases had not been very successful because of some Supreme Court interpretations of the ADA. The interpretations that were the biggest obstacles were changed as a result of a statutory amendment [the Americans with Disabilities Act Amendments Act of 2008], and there seems to be a greater interest among the lawyers who are representing employees and disability discrimination cases as a result of that.
Initially, the Supreme Court had read the category of individuals who are protected by the statute quite narrowly. The 2008 statute tried to broaden the category of individuals covered by the statute from the interpretations that had come out of the Supreme Court; it really opened things up in terms of who would be able to sue under the statute. It didn't really have a significant effect on the basic underlying disability discrimination prohibitions, but it did enable a larger number of people to take advantage of the ability to get into court.
There also has been increased attention to disabilities within the legal profession itself and the concern that there need to be accommodations for lawyers who have disabilities, but that's a whole other topic.
Q. What has been some of the other more recent changes in the law over the past couple of years?
The 2008 statute was a big one, and that really didn't go into effect until 2009, so much of the litigation is still ongoing. There are continuing issues in connection with things like athletics and how that might be affected at the school level. There's a fairly recent case out of the Seventh Circuit (A.H. v. Illinois High School Association, No. 17-2456) in which a young man who had been a Paralympic athlete at almost a world competition level sued to try to get the Illinois High School Association, which governs athletic competitions in the state, to create a Paralympic division for the state track meet, as well to change some qualification standards with regard to running. He ultimately failed in the Seventh Circuit, but it's interesting to note that a lot of states actually do have a Paralympic division, and there is a general provision in the law and the ADA regulations that require states to provide access to public programs, which would include things like athletics that are supervised at the state level. I thought he had a quite strong argument, although it was not successful.
Q. How does Illinois compare to other states in Disability Law?
There are some very good things that have gone on in the state. The State Attorney General's Office seems to be strongly interested in making sure that people with disabilities have their rights protected. And I think has been highly beneficial. The public services in Illinois, although there is room for improvement, in general are good.
The Seventh Circuit's record on disability issues is somewhat mixed, such as the athletics example and others that apply some not entirely appropriate grounds for keeping people out of court. On the other hand, there are some holdings that I would frankly view as fairly progressive and very helpful for people with disabilities.
There are cases dealing with the ability to place group homes in localities that might be initially resistant to them where the courts have upheld the ability to do that. In one case, the Seventh Circuit basically upheld the educational rights of a student who wasn't gender conforming. I think was a highly progressive decision and one that could be applied in any number of additional areas as well.
The Seventh Circuit also is one of the circuits that has found that Title VII's (the major employment discrimination law) sex discrimination prohibition also covers discrimination based on sexual orientation. Although that's not specifically a disability issue, I think it does indicate a certain amount of openness to protecting rights that belong to people who might otherwise be marginalized.
Q. What are some of the other hot topics in Disability Law that you see getting a groundswell right now?
Privacy rights. Many people with disabilities benefit from privacy simply because if people don't know they've got a disability, it can be difficult to be discriminated against on the basis of disability. But given that privacy is under siege at the moment, it might be difficult to try to keep an employer or someone else from knowing about a disability that might be the ground for discriminatory action. There's a fairly recent article on the Genetic Information Nondiscrimination Act that just came out in the Yale Law Journal [Bradley A. Areheart & Jessica L. Roberts, “GINA, Big Data, and the Future of Employee Privacy," 128 Yale L.J. 710 (2019)], and there's been other work in that area.
Q. What advice would you give to aspiring law students?
If you're interested in pursuing a career in public interest generally or in Disability Law in specific, there are careers out there. You might wind up not being able to do everything that you want to do in your first job, but your first job can lead to other things and provide really valuable experience that you will use as your career develops.
Q. And lawyers who want to do Disability Law?
It's not a forbidding area of the law to the extent that you've basically got a federal statute with relatively clearly written regulations and a respectable amount of case law that can be used. So even what would appear to be a fairly complicated disability discrimination case often can be broken down into something that's quite manageable.
Q. Is there anything else you'd like to talk about with your work and Disability Law?
DePaul has been a very good place in which to do the work, partly because I've had very enthusiastic students, and I've gotten good support from the administration in my scholarship efforts in the field. One of the benefits of being a law school professor is that you really do have the ability to be involved in pro bono work in Disability Law and other fields. That's been a big, big part of my career and a thing for which I'm very grateful to have the opportunity to be involved in.