By Gwyneth K. Shaw
Innovative and powerful leadership is evident throughout the Berkeley Law community, from students and alumni to faculty and staff. We will be highlighting various examples to showcase how such leadership advances justice, accountability, and the rule of law.
When Arlene Mayerson ’77 arrived at Berkeley Law, the course she teaches today, Disability Rights, didn’t exist. In fact, neither did the field.
But the first steps toward her distinguished career — as a key player in the development and passage of the landmark Americans with Disabilities Act (ADA) in 1990, then over decades more of pathbreaking advocacy — happened at the law school.
“I went to law school to be a civil rights lawyer,” Mayerson says. Berkeley Law, with its ties to the broader Free Speech Movement, civil rights and feminism was a beacon from across the country. As it turned out, “law school just clicked with my brain,” Mayerson says.
“I made sure to take every single course Herma Hill Kay taught,” she adds, noting that the legendary professor and Berkeley Law’s first woman dean was one of just three women on the faculty during her student days.
Mayerson snagged an externship with U.S. District Judge W. Arthur Garrity — the judge overseeing the long and contentious fight over school desegregation and busing in Boston — and was detailed to work on another constitutional case, concerning the treatment of inmates in the Charles Street Jail.
A historic movement
The movement that would animate her professional life was ramping up around the same time, concentrated at first around the failure to issue regulations to enforce Section 504 of the Rehabilitation Act of 1973 — the first significant federal disability civil rights legislation in American history.
San Francisco was one of the demonstration sites, and the news articles about the sit-in protests “really captured my imagination,” Mayerson says. After graduating Order of the Coif, she pursued a Master of Laws (LL.M.) at the Institute for Public Representation at Georgetown University Law Center, working with other public interest organizations on a wide range of cases.
Back in the Bay Area, Mayerson started looking for civil rights jobs, and an opening at the nascent Disability Law Resource Center popped up. The brand-new center was under the umbrella of the Center for Independent Living (CIL) in Berkeley, the first of its kind in the nation.
“Like all of CIL, there was disabled leadership,” she says. “My first interview wasn’t even with lawyers, it was with activists. And even though I had good credentials from Berkeley and Georgetown, what really impressed them was that I got the rubric of disability exclusion and segregation being a civil rights issue — because it really wasn’t known that way at all, it was known as a social welfare issue.
“The director of DLRC said he wanted a blank slate. And I tell my Berkeley Law students today that I was that blank slate, and I was written in the movement’s image. I was working hand in hand with the leaders of the disability rights movement, learning from them and following the lead of the movement.”
Driving force
In 1978, the founders of DLRC hit on the idea of creating a national disability civil rights organization modeled on the NAACP Legal Defense Fund and others like it. The Disability Rights Education & Defense Fund (DREDF) was born.
DREDF began with a meeting of leading civil rights attorneys, policy makers, and activists with the goal of introducing these leaders to disability as a civil rights issue. By the end of the gathering, it was clear that the organization needed a Washington, D.C., office to have a national impact.
Mayerson was one half of the team chosen to run it, arriving shortly after Ronald Reagan’s inauguration — with cutbacks to the then-new Section 504 regulations looming. After beating back those attempts and working on several pieces of legislation to overturn negative Supreme Court decisions in the 1980s, DREDF and Mayerson were in a good position to lead the legislative efforts to pass the ADA in 1990.
“That decade of the ‘80s was about building up the trust of people who were going to be the movers and shakers on Capitol Hill to get the ADA done,” she says. “I tell my students that it is critical to gain credibility with the members and their staff — they have to know they can rely on you to know the issues, that you can work hard and fast, and that they can trust you to get it right.”
Mayerson excelled in the role. In his book Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights, Lennard J. Davis calls Mayerson the “brains behind the Americans with Disabilities Act.”
Her efforts, alongside the many others who brokered the landmark law, are enshrined in an episode of the PBS show American Experience, “Change Not Charity: the Americans with Disabilities Act.”
Pushing ahead
After the ADA became law, the next challenge was enforcing it. Mayerson has been at the forefront there as well, reeling off a string of victories: Forcing the California Department of Education to provide care for diabetic students, mandating that internet-only companies like Netflix provide closed captions for their streaming shows, and shaping a settlement with Harvard and the Massachusetts Institute of Technology over web accessibility that now extends to all U.S. colleges and universities.
“My role has always been to push the envelope and to see where the ADA could be used in ways that weren’t obvious or explicit,” she says.
Mayerson got the idea for the initial suit against Netflix from watching at home on her couch.
“When Netflix first came out and there was streaming at home, I was very excited. I am hard of hearing, and I was used to using captions on TV. And I opened the Netflix app, and when the video started streaming, I thought, ‘Wait a minute, there’s no captions,’’’ she says. “I was told by every single person I would ask, ‘You can’t bring that case.’”
Title III of the ADA is about places of public accommodations, so that’s what Mayerson homed in on.
“I argued that the Netflix streaming site is a place of public accommodations, that streaming is a service of public accommodation and that therefore, the streaming site had to be accessible to deaf and hard of hearing customers,” she says.
The judge agreed, and the historic settlement of National Association of the Deaf v. Netflix had a domino effect: All the big streamers quickly signed on to their own settlements.
“The power of it is so amazing,” Mayerson says. “As a retired person, the thing I miss the most is having that kind of impact on the world.”
Training the next generation
But Mayerson isn’t out of the arena yet: She still teaches Disability Rights at Berkeley Law, where she’s been a lecturer since 1988. These days, she teams up with DREDF Public Policy Director Silvia Yee and Elizabeth Zirker, senior attorney at the National Health Law Project.
“I consider it my responsibility. It’s a way of giving back,” she says. “I feel like I learned legislative lawyering on the job, and it’s really important for students to know this whole other avenue of the law that can have huge impacts. I also like to bring in some of the behind-the-scenes strategy in litigation.”
Looking back, Mayerson says she can’t imagine a more stimulating and impactful career. Along the way, she’s picked up a stream of accolades, including the Spirit of Independence Leading Advocate Award from the Center for Independent Living in 1993, the American Diabetes Association Public Policy Award in 1997, the Henry Viscardi Achievement Award and in 2014, the Starkloff Disability Institute’s Open Door Award in 2015, and the American Bar Association Paul G. Hearne Award for Disability Rights in 2016. In 2018, she was recognized as a National Women’s History Project Honoree.
She hopes today’s students get the same opportunities amid cuts at the U.S. Department of Education and other efforts to turn back the clock on civil rights.
“I was just so lucky — at the right place at the right time,” she says. “And I’m very grateful for that. I wondered on the first day of class this year how students feel about studying civil rights in the face of recent setbacks. But I think the students still feel the energy that they want to use their lawyering skills to advance the greater good.
“And today’s students know that race, gender, disability and ethnicity are all intertwined in the wider civil rights movement — they understand the intersectionality. I want to thank them for having this interest, because it’s so personal to me, and so historically relevant.”