David Benjamin Ketroser was born to Irwin and Grace Ketroser. He attended St. Louis Park High School, Stanford, and the University of Minnesota Medical School, specializing in neurology. Not one to resign himself to a paltry one advanced degree, he went on to get a law degree from William Mitchell School of Law. He was the child of a Minnesotan Jewish community that seems to be an omnipresent, essential ingredient to any and all civil rights advocacy in this state. I do not know when he was diagnosed with MS, but by the time I met him, it required him to use a power wheelchair. He was a licensed accessibility specialist, although that is something of an understatement. He died on Nov. 7, due to complications from MS.
David’s and my paths crossed only once, but it was impactful enough that I’ll never forget it. I was serving as legislative director for a disability advocacy organization. For the preceding year, we had been partnering with business associations to do proactive outreach to small business owners about complying with accessibility requirements under both the Americans with Disabilities Act and the Minnesota Human Rights Act. The partnership was prompted by a recent spate of “drive-by” accessibility lawsuits. By “drive-by,” I mean that at least some of the lawyers filing these lawsuits were doing so on behalf of clients who may or may not have actually attempted to access the business in question. By some accounts, certain lawyers were literally going on Google Earth, scanning for businesses with visible access violations. During a 60 Minutes special on the topic, several plaintiffs even claimed that their lawyer had filed lawsuits without their knowledge and consent.
A notable distinction
David held a notable distinction among this group of litigators, in that in addition to being a lawyer, he himself was also a person with a disability. This distinction would become acutely relevant during the legislative deliberations that would ensue. Given that the proactive outreach that my organization conducted had not succeeded in stymieing the flow of lawsuits, the business community proposed a new round of legislation.
The bill as first introduced would have, in effect, granted an inaccessible business impunity. The bill required an aggrieved person with a disability to file a complaint with the business in question. That business would then have enjoyed a 60-day window to remedy the violation, before being subject to any liability. In effect, business owners could put their feet up and wait for a person with a disability to contact them. Until that transpired, there would have been no lingering, ongoing impetus (in state law) for them to become accessible in the absence of that threat.
Given our previous collaboration, the business community assumed that our organization would provide them with cover fire and support their bill, even though they had made no effort to include us in drafting the initial engrossment. In early hearings, we expressed our support for preventing drive-by lawsuits, but we also conveyed our concern that the bill, as drafted, went too far. In one of the early hearings on the bill, a small business owner described the harm a lawsuit had caused him and then pointed to his collaboration with our agency as evidence of his good faith. I testified after him, expressing our concern. Afterwards, he turned to shoot me a look of indignation and disgust. As is too often the case in politics today, our pursuit of nuance was interpreted as betrayal.
Working in conjunction with trial lawyers and business advocates, we ultimately secured a compromise, aided by the legislative acumen of Senator Nick Frentz, that would require an aggrieved person with a disability to demonstrate real harm, before filing suit. No more Google Earth. Nonetheless, parties with legitimate grievances would retain their right to litigate those grievances.
One outstanding controversy
There was only one outstanding controversy. Civil law acknowledges a distinction between the bar that needs to be met by a person represented by an attorney versus what is expected of the average citizen, representing themselves without formal, legal education. The bill as introduced subjected the aggrieved person with a disability to the same level of scrutiny, whether they were represented by an attorney or represented themselves. Advocates within the legal community wanted to maintain a lower burden of proof for a person with a disability representing themselves, in recognition of the aforementioned legal tradition.
There was just one problem: David. While he had allowed his license to lapse, David was an attorney and a brilliant one, at that. An attorney representing themselves is represented by an attorney. It (truly) did not seem fair that he would be excused from the level of scrutiny applied to any other attorney. His body may have required accommodation, but his brilliant mind certainly did not. So, how do you solve a “problem” like David?
In what would arguably be the first and maybe only materially beneficial application of my liberal arts education and upbringing as the son of an English teacher, I proposed the phrasing “a person not represented by an attorney, who is not an attorney themselves.” The compromise was accepted. Therefore, I was feeling quite smug and self-satisfied, walking through the halls of the capitol as a young advocate, when my phone rang.
“This is David Ketroser.”
I stopped dead in my tracks. Throughout this entire process, we had not actively collaborated with David. He was like Godot, lingering somewhere offstage, but nonetheless serving as the focal point of the entire drama. A time or two, I saw him from across the room, at a legislative hearing. He would testify with a righteous anger that caused the room to shake.
The latest draft of the bill had been posted to the Legislature’s website, including my proposed compromise language.
“It might as well have my name on it,” David astutely and pointedly noted.
One more thing …
To the best of my ability, I repeated our talking points and attempted to articulate the multiple truths we were endeavoring to hold in tension. David made clear that he was unimpressed and continued to be virulently opposed. As our conversation came to an end, he asked if he could say one more thing. I braced myself for another onslaught of indignation, but instead he said this.
“Thank you. You’re the first person in a while to stand up and fight on this.”
I do not include that to be self-aggrandizing. I say it to preface the wave of shame that came over me, as soon as he said it, shame rooted in the lingering fear that I was a traitor who did not deserve his thanks. You see, while we stood at opposite sides of a fault line, my relationship with David was complex. Internally, I was torn into two pieces.
There was the part of me that had been mainstreamed in the classroom growing up, had been voted homecoming king, had for all intents and purposes enjoyed the quality of life afforded to able-bodied people. (This is in part due to the mildness of my condition, but more so due to the reforms secured by the advocacy of David’s generation). That part of me wanted to yell at David, to tell him to be quiet, because they were finally giving us a seat at the table.
Then, there was the part of me that got bullied so aggressively in middle school that I fell into despair, the part of me that used to wonder if my condition precluded me from being the object of sexual desire, the part of me that, even today, attracts the stares of passers-by, on the days when my symptoms are particularly acute. That part of me recognized that David’s generation had grown up in a society that kept people with disabilities caged in institutions. That part of me heard him, as he seemed to say that that Frederick Douglass was right; power would never concede anything without a fight. That part of me was secretly rooting for David. That part of me recognized him as a hero. That part of me knew, deep down, that a fully accessible society would have nothing to fear from David’s litigation.
New generation emerges
Ultimately, the legislation passed. To my knowledge, at least in state court, the capricious lawsuits ceased, while legitimate cases continue to be heard. A new generation of advocates, exemplified by the righteous irascibility of my friend Noah McCourt, continue to push our state and our country to make good on their promises. For my own part, I left the world of disability advocacy and now represent one of the largest corporations in the world, in what you might call an act of adult mainstreaming. I continue down this path of integration as rebellion. I remain suspended, as I have always been, somewhere between the chains of my ancestors and the wings of my children.
Seeing news of David’s death hit me like a ton of bricks. The next day, I went to work. Though I don’t need it, as a symbolic tribute to David, I pushed the button for the automatic door. It slowly swung open, granting access to the corporate headquarters within, which in and of itself felt like a metaphor too pregnant with meaning to be fully articulated. As the door’s motor hummed, I silently gave thanks to God for the warrior he now calls home.
Rest well, David.
George Shardlow works in government relations for a Minnesota-based company. He lives in Hopkins with his loving fiancé, not far from where David grew up. If any business owners have questions about accessibility compliance, George encourages them to contact the Minnesota Council on Disability for referral to an access specialist, at mn.gov/mcd.
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