Profits, Debts and Fresh Starts, A Jewish Take on the Entrenchment of Income Inequality

I recently read an article about an artist named Fried Potatoes, who incinerated $500,000,000 of tuition debt agreements from a corrupt University in Chile, rendering them virtually impossible to enforce.

I do not support arson, and I know that the lender here was a particularly egregious criminal, so I don’t suggest emulating these choices, but I think many can identify with the impulse, even here. As a few Americans gain ever greater wealth, while most struggle under growing debt, we must struggle with the question of what kind of society that creates, and whether that is the kind of place we want to live. If not, what might we do differently?

The best answer that I have found came to me when I was preparing to deliver a D’var Torah (sort of a Jewish homily) at congregation Kehillath Israel in Brookline Massachusetts on May 9, 2014. I was asked to speak on the portion of the Torah which was primarily contained in Leviticus Chapter 25, which was the Jewish reading for that week.

Though it would be weeks before I encountered the protest of Fried Potatoes, I was immediately struck by what I perceived to be clear moral guidance on the questions of growing income inequality in our society and of how a just society addresses the basic needs of those who have less.

In the Torah we read, starting at Leviticus 25:10,

“and you shall hallow the fiftieth year. You shall proclaim release throughout the land for all its inhabitants. It shall be a jubilee for you: each of you shall return to his holding and each of you shall return to his family.
11 That fiftieth year shall be a jubilee for you: you shall not sow, neither shall you reap the aftergrowth or harvest the untrimmed vines,
12 for it is a jubilee.” (Leviticus 25: 10-12)

This proclaims the jubilee year, which, under differing interpretations of Jewish law, is either the 49th or 50th year in a cycle. In the jubilee year, we read, all property goes back to the original divine land grants to each Israelite, if in fact it has not already been redeemed for value, which is the clear preference in the Torah. See Leviticus 25: 25-28. Note, this has the effect of turning all property sales into a 50 year maximum purchase of the yield of real property, the actual term being from date of purchase to date of jubilee.

The same chapter of Leviticus introduces the concept of the 7 year fellow cycle. In Deuteronomy’s restatement of Jewish law, we read

1 Every seventh year you shall practice remission of debts.
2 This shall be the nature of the remission: every creditor shall remit the due that he claims from his fellow; he shall not dun his fellow or kinsman, for the remission proclaimed is of the Lord. …
4 There shall be no needy among you — since the Lord your God will bless you in the land that the Lord your God is giving you as a hereditary portion
5 if only you heed the Lord your God and take care to keep all this Instruction that I enjoin upon you this day. . .
7 If, however, there is a needy person among you, one of your kinsmen in any of your settlements in the land that the Lord your God is giving you, do not harden your heart and shut your hand against your needy kinsman. . . ,
9 Beware lest you harbor the base thought, “The seventh year, the year of remission, is approaching,” so that you are mean to your needy kinsman and give him nothing. He will cry out to the Lord against you, and you will incur guilt.
10 Give to him readily and have no regrets when you do so, for in return the Lord your God will bless you in all your efforts and in all your undertakings.” Deut. 15:1-10 (excerpted)

The implications of this passage are astonishing. In the biblical world, every 7 years there was an automatic bankruptcy, a wiping clean of debt, and every 50 years, everyone reverted to their baseline stake of real property, divinely granted.

Now, this system is in no way anti-capitalist. The very fact that there is a system of redemption payments in land transfers makes clear that you can keep profits from anything that you sell. Further, the Bible exempted townhomes from reversion. The idea was not to prohibit elevating one’s status by amassing significant wealth, but rather a limit as to how far one could fall. No crushing decades of debt, and, every generation a mandatory reversion, granting each family the basic means of subsistence, a baseline from which to improve their condition.

The actual system almost certainly did not work. Even the Bible has to expressly prohibit the freezing of credit in the 7th year and, as early as Rabbi Hillel, (A Rabbi living in the first century CE), the rabbis were creating nondischargeable debts that worked around the text, and Yehuda Hanasi (the codifier of the Mishna in the 3rd century CE) created rabbinic limitations around the land rules. Certainly, both Maimonides and Nachmanides spend some time trying to work out ways that the land will not revert.

This is almost irrelevant, however. We do not live in Israel on biblical land grants, and so we would not be following many of these rules anyway.

What is important is that, notwithstanding efforts to support a functioning economic system, the rabbis never departed from the values inherent in the systems. From the Talmud, through Maimonides, well into key Jewish thinkers of the 16th and 17th centuries, notwithstanding exceptions and vehicles for legally nondischargeable debt, we learn that the presumption of automatic bankruptcy was still operational.

How does this guide us today? I think that it is extraordinarily valuable to envision a capitalism where everyone retains the basic right of subsistence, where profits are tolerated but crushing debt loads are not. Simple things like an economic safety net that works, and a bankruptcy system that retains the homestead exception while completely dispensing with the notion of nondischargeable debt. We do not have farmlands to give people, but we, like the Jews of old, can make sure that no one falls too far into destitution. Let’s find ways to avoid crushing people under the weight of debt, so that they will not be moved to theft and arson. Let’s create a just society for all.


Reclaiming Memorial Day: Can We Make It Real Without Being Touched by Loss?

Memorial Day became real for me on October 2, 2009, when a high school friend, Captain Benjamin Sklaver, was killed while serving in Afghanistan, the victim of a suicide bomber. Before Memorial Day 2010, the day was a mix of half remembered parades, three-day weekends, and the life cycle events planned when everyone is off work. It was the summer denoting bank holiday rightfully lamented by commentators nationwide.  That Memorial Day, the sacrifice of our nation’s heroes came home, and now the day is never quite the same.

Ben and I were not super close, he was a senior to my freshman. In fact, I had closer friendships with his younger brother Sam, who was my age, and his parents, Gary and Laura, whose Hamden Connecticut house became a home away from home when I was unable to return home from Yale for the holidays. As such, I cannot say that I felt the deep personal pain of losing a close friend.

Neither, however, had I only the generic admiration and respect for a man whose heroic and tragic story was held up as an example in Time magazine, and who, though he died at the age I am now, had served his country, found love, and founded the Clear Water Initiative, an organization that continues saving and improving lives almost 5 years after his passing (direct donation link here). After all, in this Internet connected age, we often learn the moving narratives of our fallen heroes.

Rather, it is the death of a hero made personal. When I think Ben’s sacrifice, I experience it through the memory of our first meeting. I was in the eighth grade, and Ben was taking over a Jewish leadership position from my sister, Shira, who was a graduating senior. As Shira came out to meet my school van, I saw framed in the door what seemed to me to be an impossibly tall, grinning fellow. Shira told that this was Ben, who would be the religious and cultural vice president when I joined our region of the North American Federation of Temple Youth (NFTY) in the fall. I remember seeking out Ben that fall, and feeling cool because I knew one of the officers. I remember when he, and the other officers, made me feel included when, sometimes, as a 12-year-old kid in a wheelchair, I felt a little left out.

These few moments are the sum total of my memories of Ben, but they make his sacrifice real and poignant for me in a way that 1 million moving tales of heroism cannot. The grinning silhouette in my doorway becomes the face of the fallen hero.

I think that the impersonal nature of loss is probably what drives the move from somber Memorial Day observance to a focus on picnics, barbecues, and life cycle events. Leaving aside a commentary on the corrosive force of commercialism, and the loss of symbolic power in favor of a three-day weekend, sacrifice takes on a different dimension when the loss is personal.

As we are about to complete our 13th year of ongoing combat operations, far too many of us are gaining those personal connections, and I rejoice rather than lament for those whose lives have not been so touched. That said, I wonder if we can capture a sense of connection by a slight change in perspective.

A friend posted a Facebook reminder that Memorial Day was for those who did not come home, while Veterans Day was for those who did. Surely this is an accurate distinction, and yet, I wonder, can we meet our very human need for real connection to our fallen, even through those who came home?

During my time as a member of the National Council on Disability, I was privileged to serve in a civilian capacity with Captain Lonnie Moore (U.S. Army, retired) and Captain Jonathan Kuniholm, (United States Marine Corps, retired). Captains Moore and Kuniholm obviously survived their time in the military, and have thrived in civilian life. Yet, both sustained serious battlefield injuries, and have permanent disabilities.

Though I have never asked, I assume that, having been in such heated combat, they lost comrades and, but for the grace of God and modern technology, might well have lost their lives. As Captain Moore reminded me today, for all intents and purposes, he did die, only to be revived by yet another form of heroism, the service of our medical doctors.
As I hear of fallen heroes, can I be empathetic enough to realize how easily that could have been my friends and colleagues, Jon and Lonnie? Can I link the memories of their comrades to my memories of them much as I described with Ben? I would like to think so.

Many of us are blessed not to have lost a friend or loved one in service to our country. And yet, after 13 years at war, almost all of us have had meaningful interaction with someone who served. Just last week, I had an x-ray from an x-ray technician who was an Army veteran who told me of his service and I opened a bank account under the helpful guidance of a young branch supervisor who told me of his recently completed naval service. Connections abound.

So, as we look this Memorial Day at the stories of our fallen heroes, can we take just a moment to understand their similarity to the veterans among our family, friends and neighbors? Can we use those common bonds to personalize their sacrifice, and maybe to make Memorial Day real for us? How about we just try?

Law and Lawyers

Obligation Born of Privilege: The Lawyer’s Duty to Enable Civic Access for All

Any lawyer reading this has experienced that moment, when a friend or family member has been confronted with a legal document or procedure, and gets this forlorn, slightly overwhelmed look. If you are a young lawyer, as you are explaining and demystifying, you might feel generous and slightly superior. You know the secret handshake. Your three years of school privileged you with the proverbial keys to the kingdom, and now you get to unlock that mystery for your friend or a loved one. In this piece, I want to explore what that privilege means in the context of those who do not come from a world where they have lawyers for friends and family members. They feel the same forlorn disorientation as does your a loved one, but they do not have you riding to the rescue. I say that the obligatory cost of our privilege is that, at least to some degree, they should.

This idea first occurred to me in March 2012 when I was honored by Young lawyers section of the Connecticut Bar Association with their diversity award. I was asked to exhort the young lawyers to public service. Along with some good-natured ribbing on the idea that I had been asked to give an exhortation, I did my best to explain why I believe that lawyers have an obligation to perform pro bono service, and why I think that the most important such projects are the most humble. I told them this story.

When I was a junior associate, a partner of my then law firm approached me because she had been approached by a judge of the Surrogate’s Court. A mother had come into court seeking a Surrogate’s guardianship for her adult child with intellectual disabilities, so that she and his father could continue to partner with him in making the necessary legal decisions so that he could live his life. Surrogate’s guardianship in New York is a simple process specifically for people with a particular type of intellectual disability. It does not require a lawyer. In this case, the New York County Surrogate determined that the young man was not a good candidate for this type of guardianship, and needed a traditional guardian appointed through the main court system.

Thus was this mother stymied, and reduced to tears at the prospect of a legal proceeding that would require a lawyer, something beyond her means. The Surrogate, who was in my opinion a woman of great wisdom and compassion, was not willing to compromise the legal standards, but reached out to our firm in hopes that she could remove the practical barrier to this family getting what they needed.

I spent the next 6 months going through the mechanical and legalistic process of an uncontested guardianship appointment. Though uncontested, it required multiple filings, and the questioning of witnesses in open court. While no legal ingenuity was required, this simply could not have been accomplished without a lawyer, and I feel that this process was one of the most useful things I have yet done with my law license.

This story is not unique. Everything from buying a house in most states, to obtaining even a no-fault divorce or appointing an uncontested guardian requires a lawyer in our system. We have made critical tasks in individual lives dependent upon our profession. And, rightfully given the need to earn a living, we charge for our services, often quite a bit.

To compensate for these high fees, we donate some of our services pro bono publico, for the good of the public. In fact, we are taught that this is our obligation in exchange for the privilege of being considered professionals. It is an obligation that is becoming increasingly universally accepted. There is no question, that is a good thing.

Most of us, however, want to do sexy pro bono. In my firm must popular pro bono was marriage equality work, followed by some Guantánamo work, and some criminal appeals. People did some domestic relations, but it never felt like it had the same draw. In other firms, armies of associates work on death penalty cases, or impact litigation. All of this work is critical, and world changing. Yet it does nothing to serve the basic needs of people like my clients, who just wanted to be able to help their son.

My exhortation to the Young lawyers, therefore, was more than just to do pro bono. Certainly, I do not want them to cease their important work on the types of cases described above. We can and must move forward as a society on these big issues. What I request, however, is that they take some time to help with the little things.

I do not know if it is particularly desirable that lawyers are necessary for things to be accomplished in our society. I suspect that it is not. That, however, is beyond my ability to change, and largely beyond the ability of even the collective of young people that I spoke to in 2012. What we can do, what we must do, and what I ask any lawyers among my readers to continue doing, is take some time to help people navigate the system, addressing the problem one person at a time.

Disability, Sexuality and Body Image

From Objects of Sympathy to Objects of Desire: Are We Finally Ready to Embrace the Sexuality of People with Disabilities?

In the world after “The Sessions,” it may finally have permeated the general consciousness that people with disabilities have sexual urges, and even that they act on them. Less clear is how well we acknowledge as a society that people with disabilities can also be the objects of sexual desire, experiencing and enjoying a relationship of mutual attraction, not only spiritual or mental, but physical. This week I was presented with two stories that provided interesting insights. One left me despairing and mildly ill, the other troubled my inner feminist a bit, but left the disability activist/sometimes sexual person with a disability in me cheering.

I was truly troubled to find a story out of Minnesota this week about Jordan Knapek, a young man with CP going to prom. The author opens by telling us that we are about to hear “a story about how some of life’s best moments aren’t necessarily perfect.” The next 128 words proceed to focus on just how imperfect Jordan’s life is, focusing primarily on his limitations and his need for assistance. Then, we get to the heart of the story. In a tone reminiscent more of how one might talk about an eight-year-old then a 17-year-old high school senior, the author tells us, “Through his communication device, and in front of our camera, a secret got out. Jordan had been crushing on Rachel.”

Now, did Rachel return his romantic interest? Apparently not. Instead, the aspiring nurse said, “I just want him to have that high school prom experience.”

I will say nothing to impugn her motives. It sounds to me like a teenage girl with a big heart wanted to do something nice, and that really is sweet. It is hardly what I understand to be a high school prom experience, however.

My understanding is that usually when a guy asks a girl who does not fancy him to the prom, she usually turns him down, gently or not depending on the individual. Maybe he stays home and mopes, or maybe he bounces back, asks a girl where the interest is mutual, and has an actual high school prom experience. (I am taking no position on teenage sexuality, merely advocating that whatever prom experience two teenagers have, sexual or otherwise, should be genuine.)

Here, the article only tells us somewhat cryptically, “Jordan had to take in most of the night from afar, but his date did take him for a spin.”For Jordan, assuming that he aspires to real romantic relationships, I view this as a negative experience.

Finding real romance, especially for those of us that present to the world a little differently, is a challenge. In my experience, it requires some magical combination of awkwardness and fumbling along with confidence, assertiveness, and a real vulnerability and openness to rejection and heartbreak.

This experience began with a juvenile premise, the sharing of a “crush” with a third party, and ended with pure fantasy, the uninterested object of affection pretending to the bare minima of a date. This no more real than the high school girl who gives one dance to the first grader with a crush, but far less age-appropriate. I only pray for him that he gets to experience the real love of someone who is interested in him as a romantic partner at some point in his life.

This is not my biggest problem with this story, however. My biggest problem is that it typifies the image of people with disabilities as slightly infantile objects of inspiration, suitable for feel-good playacting, but not for real relationships, and certainly not as potential sexual partners.

Mere hours after I read this story, however, I came across a very different portrayal, one that gives me hope that maybe our journey as a society need not end with “The Sessions”, much less the story above.

I was killing time surfing the Washington Post during one of my physical routines, and I came across the news that the runner-up on the show Dancing with the Stars was a paralympian. Curious about this, I followed the link under her name and was brought to a very different story.

The story opens with a sizzling image:

“Purdy and Hough entwined themselves in more ways than you’d think possible throughout a steamy, ingeniously choreographed cha-cha on the season’s first episode. The twisting hips and tight, fast footwork posed no problem for Purdy, a competitive snowboarder.”

Not until two red hot paragraphs later do we read

 “she has abs of steel. Red-carpet looks. Sex appeal to burn, in a lithe body that’s perfect for the show’s skin-baring costumes. And those legs: Peeking out of her adorable gold-fringed cha-cha pants were gleaming metal rods leading to flesh-toned plastic feet, part Terminator, part department-store mannequin.”

Notwithstanding the cheesy imagery and the blatant objectification, which offended my inner aspiring writer and my inner feminist in equal measure, the first mention of disability comes at the end of a series of paragraphs practically dripping with sex appeal.

Now, this is not to ignore that the author follows the tired conventions of disability journalism, using inspiration porn expressions like “She has looked into the abyss, and clawed her way back.” Also, the very emphasis on the way that disability disappears creates a troubling link between sexual appeal and some idea of “normalcy” or passing, but, one societal problem at a time is enough for me.

Also, much of the midsection of the article is a fascinating look at the potentials of prosthetic design, not germane here.

She closes, however, with the following image.

“Tiptoing [sic] onto the stage for her contemporary-style dance with Hough, Purdy wore a simple silver dress with an airy chiffon skirt, the hem short enough to show her muscular thighs and sleek, jet-black shins, exposed metal ankle joints and rubbery Barbie-doll feet in a permanent point. . . . the emotional power lay in the way he and Purdy moved together, as if the dance floor were a private realm beyond reach of physics. And the final picture painted by the author captivates. She writes, “At one heart-catching moment, Purdy melted into his arms and he swept her around his back as if she were weightless. As if she were swimming through air.”

This paragraph describes beauty and power, eroticism and grace, and breathtaking chemistry, and does this not by ignoring the prostheses nor exalting them, but including them seamlessly in the captivating picture. The reader is captivated by the description this woman not because of her prostheses or in spite of them, but rather because of the whole picture of which they are a part. At the end of the article, Ms. Purdy says “I am not my legs.” This is true, but the beauty of this article is that it shows that the legs can be a part of, rather than apart from, the attractive whole.

Without question, this article, like *Dancing with the Stars* in general, is filled with the sort of cheap sexual theatrics of which I generally disapprove. At the same time, I am truly delighted to see the equality of opportunity in the way those theatrics are applied to a woman with a disability. If I have to choose between people with disabilities being portrayed as children, treated to romantic make-believe by their well-meaning peers, or being portrayed as the potential subject of sexual desire, I think the latter is infinitely preferable.

“The Sessions” taught us that people with disabilities seek meaningful sexual relationships. Maybe, just maybe, we are starting to acknowledge that these attractions can be reciprocal. One can hope.


If You Can Manage to Care: Actually Caring is the Best Way to Save on Healthcare

There is great fear in the disability community today about the slow and inevitable transition from Medicaid fee-for-service to Medicaid managed care, and for good reason. For most, managed care conjures up pictures of bureaucracy and rationing, the erosion of choice in favor of the almighty dollar. The rise of the HMO was a horror story in the private sector that many of our most in need are just waiting to see replayed.

Why then are people virtually beating down the doors to join the One Care Program, a managed care program at Commonwealth Care Alliance (CCA)? Why do I hear, and share, the lament that CCA’s services are currently only available to those dually eligible for Medicare and Medicaid, because the capitated payment system on which they function is only available as part of a demonstration project for dually eligible beneficiaries. Why do I hear clamoring for a capitated option for Medicaid only beneficiaries?

The answer can be found in one phrase. “Managed care, not managed cost.” I first heard these words out of the mouth of Dr. Robert Master in the summer of 2003, when I sat with him as he pitched the idea of CCA to potential funders. His decades of demonstration work at what was then the Boston Community Medical Group had proven beyond a shadow of a doubt that caring for the whole person improves health and minimizes cost. Why is this?

Crisis control, hospital admission, emergency medicine, and end of life care make up the most expensive parts of any health care system. A nickel prevention here is worth many dollars of cure. Dr. Master and his team learned that if you get to know an individual, learn their needs, their wants, and how their individual bodies work, and if you choose to meet those needs, without regard to a prearranged menu of services, then health care works better and costs less. Routine maintenance, often nickel and dimed by private insurance or fee-for-service Medicare and Medicaid, can prevent crises and hospitalizations. Creative care strategies tailored to the patient can do even more. When the only barrier to paying for medical care is that the doctor and the patient agree on its necessity, amazing things happen. Then there is end of life.

Most of us in the private insurance world build strong relationships with our doctors as we age. Under their thoughtful care, we craft living wills and other end of life plans, we discuss our needs and designate loved ones with powers of attorney. We give careful thought to the balance between the natural extension of our lives and the needless prolonging of our suffering. Traditional government programs, with their impersonal bureaucracies and overtaxed professionals, often fail to participate in, let alone prompt, these discussions. Further, many with disabilities have not been exposed to the cultural norms that Ithose of us who are the educated children of educated professionals did. They have never drafted these plans, and, once a final illness takes the ability to speak for themselves, their doctor has no choice but to fight for the last agonizing breath, often taken long after conscious life has departed. The final service of truly caring managed care is to work with patients to discuss these important questions long before treatment decisions must be made. End of life becomes orderly, often much more pleasant, and, though we hate to admit it, much cheaper. This allows limited dollars to go for quality of life for the living.

In short, when care is truly managed, outcomes are better and cost is less. And you need not take the word of a health plan. Rather just ask the many Massachusetts Medicaid beneficiaries clamoring for CCA. This is a model that should be studied and replicated, a medical practice that is truly first and foremost about care.

Disability, Employment, Judaism

Meaningful Employment for People with Disabilities: Let’s Start Making It Happen Now

Today, I have the honor of being the featured writer on Zeh Lezeh, a blog of the Ruderman Family Foundation. For those who do not know, the Ruderman Family Foundation is a fantastic organization based in Boston and in Israel. Their mission statement, in their own words, is that,

Guided by our Jewish values, we support effective programs, innovative partnerships and a dynamic approach to philanthropy in our core areas of interest: advocating for and advancing the inclusion of people with disabilities throughout the Jewish community; fostering a more nuanced understanding of the American Jewish community among Israeli leaders; and modeling the practice of strategic philanthropy worldwide.”

I can personally attest to their impact as I continue to find their philanthropy at the heart of a vast number of initiatives in the Jewish world designed to improve inclusion of people with disabilities.

Today’s honor reminded me of the first time I had the honor of being their featured writer, on January 2, 2012. I wrote a pitch entitled Full Employment for People with Disabilities: If Not Now, When? It is now two years later, and I feel that my call to action remains, unfortunately, as timely as ever. Therefore, I reproduce the following post here, and challenge my readers to think about how they could implement it.

Guest Blogger Matan Koch, Associate at Kramer Levin Naftalis and Frankel, LLP and Member of The National Council On Disability

The below represents the author’s personal views, and not those of the National Council on Disability.

In the Mishneh Torah, the Rambam teaches that, when dealing with tzedakah, or righteousness, “the greatest level, above which there is no other, is to strengthen the name of another Jew by . . . finding him a job in order to strengthen his hand until he needs [tzedakah] no longer.” Archaic language notwithstanding, this simple fundamental truth guides us today. Read properly it should inform and motivate efforts to employ people with disabilities, to lessen or to replace their dependence on lesser forms of tzedakah like Medicare, Medicaid, SSI and community supports, and set them up for long-term meaningful independence.

This is nothing new to most people, but the implications of such a focus might be. We read in Kohelet (Ecclesiastes) 11:1, “Send forth your bread upon the waters; for after many days you will find it.” The rabbis explain this directive to mean that we, the doers and givers of tzedakah, benefit.

American businesses are just beginning to understand the benefits of employing people with disabilities. They are learning that it provides access to a separate and often overlooked talent pool. For example, I am a Harvard Law school graduate. Harvard Law school graduates are in high demand, and it is for this reason that I represent an appealing recruit for many businesses. Those businesses will work hard to accommodate me in order to access that talent. These talents, both those that are evident on resumes and those which are only discovered throughout the course of work, present significant benefits to employers.

Businesses are also learning that hiring employees with disabilities may allow the employer to expand in or even dominate the consumer segment with disabilities. To build from the words of the Rambam, strengthening the name of our brethren with disabilities strengthens us and our businesses. As we seek to emulate this highest form of tzedakah, we build independence, but also stand to reap tremendous benefits. That is a win-win, so, I ask “If not now, when?”

But, even if we agree that this is a win-win scenario, how do we get there?

We learn from Pirkei Avot that “Ben Azzai taught: Do not disdain any person. Do not underrate the importance of anything for there is no person who does not have his hour, and there is no thing without its place in the sun.” Simply, we each have our own special contribution to make to the critical work of tikkun olam. The same idea holds true for a business.

A successful employer would start by identifying needs within his or her organization, and continue by looking among jobseekers with disabilities to find outstanding candidates who could meet those needs. Conversely, people with disabilities seeking jobs need to focus on the skills and abilities that they bring to the table, just as would any other job seeker. Their path to employment involves education and perhaps vocational rehabilitation to hone and highlight these abilities, raising their appeal to employers.

A match made focusing upon the need of an employer and the abilities that the employee brings to bear is a recipe for success. Accommodations in this circumstance become a collective undertaking to best utilize the employees abilities to meet the need for which they were hired.

The law, always intended to be a floor rather than a ceiling for accommodation, drops away in importance as partners join together to find the employee his or her “place in the sun” so that both parties benefit. The employee benefits from the job at which he or she will succeed. The employer benefits from a well-matched worker who, trends show, is likely to stay with the organization longer than his or her able-bodied counterpart, and potentially provides help in accessing the market of people with disabilities. All because each party understood the place of the other.

Tradition teaches us what to do and how to do it, so I ask again, in the words of Rabbi Hillel, “If not now, when?”

Disability, Employment

Elephants, Taboos, and Poster Children

As anyone reading regularly will know, I am currently engaged in a job search. Recently, a friend who was making some introductions regarding the search asked if it was okay to reference my disability. This touched off a well worn internal conflict.

On the one hand, I thought about all of the times that I have experienced prejudice, and I wanted to say no. On the other hand, I thought about the motivators, from compassion to affirmative action, which might drive a contract to be more receptive, and I wanted to say yes.

The momentary conflict subsided. I remembered that my disability was so apparent, even from my resume, that avoiding it was nothing more than ignoring an elephant in the room, making something taboo when it did not need to be. But I could not stop thinking about the implications. Prejudice is a horrible thing, and I cannot blame anyone who, having the option of hiding their disability, chooses to do so. But what about the other side?

I was unquestionably a poster child. Yale used my face on their diversity newsletter when I was a student. I parlayed that into real face time, and used it to work with then President Richard Levin and his wonderful staff to make Yale a more inclusive place. Long before the photo, I concluded that, in light of my good but nor elite numbers, that my admission was in part due to the disability status. Though admited with soft high school numbers, I graduated from Yale cum laude with a 3.79 GPA. So, it seems that I got in in part because I have a disability, and we know that I was used for promotional purposes because of that disability, but I was also hugely academically successful, and was also able to partner with others to actually materially change opportunities for future Yalies with disabilities, something that I would not have been able to do if I were not both at Yale and openly a person with a disability.

What does this mean for my friend’s question? I do not want to be hired at a job at which I will not succeed, but I am a good lawyer, and reasonably confident that I will excell at any job for which I were to be hired. What then the harm if disability gets me through the door, other than that to say so is taboo?

Further, we are, as a society, fast approaching a tipping point in the way that the business world utilizes disability talent and reaches disability consumers. What if, just like at Yale, I have the opportunity to build from poster child status and in so doing gain the opportunity to bring my employer to the leading edge of these trends? This strikes me as a net positive, especially because, given i would also contibute as skilled lawyer in the legal position for which I was hired, it is all added value. Yet, in order to bring that value, I cannot reject being held up, but must rather embrace it. Again, it is easy for me since my large wheelchair makes disability the elephant in the room, ignored only by conscious choice. That said, it is not easy to overcome the taboos to embrace that role. So, sometimes I struggle.

I told my friend to use his judgment in the introductions, even as I will use my judgment should I be offered a job. I am curious, though, have others wrestled with this? Readers, those with disabilities and without, what do you think of embracing these taboos if the result can be real change, or even the less lofty but equally valuable goal of putting food on the table? I know that I will continue to wrestle with these questions each day, and I encourage you to consider them.


Diverse Advantage, and Diverse Adversity: We All Have Privilege to Check

My name is Matan Koch. I am White, and as such belong to a racial group which had effectively, if temporarily, conquered the world by the early 20th century. In pursuit of Empire, the European powers traversed the world, concurring, exploiting and enslaving. Nearly ¾ of a century after World War II signified the beginning of the end of the colonial era, whole regions of the Globe are defining themselves in terms of how well they have managed to recapture their own culture and self-rule after European dominance. In my own country, my race holds a slim majority in population but a vast majority in opportunity and economic power. Our other races, one with a not too distant history of enslavement, all with a still unfolding history of discrimination and exploitation, still experience an incredible deficit of opportunity in terms of education and economic resources. This is in addition to outright discrimination, legal until 50 years ago, and prevalent today.

My paternal grandfather, a White man, had a college degree, and worked for most of his life in White-collar careers, from business ownership to teaching. My paternal grandmother, a white woman to whom he was married from when they were each in their early 20s to his death at the age of 83, also took college courses, and worked professionally in careers ranging from music education to high school and collegiate audiovisual. My maternal grandfather was also white and also had a college degree and worked as an accountant for his entire professional life. I know less about my maternal grandmother, but she was white and, though, to the best of my knowledge, she had no education past high school, did secretarial work in office settings. They too were married from their 20s to her death in her 80s. My mother has a bachelor’s degree and graduate education, and worked for 35 years as a Jewish education professional, both teaching and running large religious schools. My father has a bachelor’s degree, a master’s degree, and a five-year professional degree, and has spent the last 35 years working as a congregational rabbi. Both of them had fairly stable home lives. So did I, and I grew up knowing that I was going to go to college, exposed to philosophy, literature, and art in the home where I grew up, while simultaneously learning everything from cultured grammar and diction to basic math and science.

My father helped me with college admission essays with greater skill than the average guidance counselor. I applied to Ivy League schools secure in the knowledge that I had all of the basic skills for which they were looking, most of which had been in my family for 3 or 4 generations. Today, I go into cultural events or job interviews with a look and sound that sociologists tell us even minority interviewers have been indoctrinated to associate with success. It is ridiculous not to acknowledge this massive source of privilege.

My name is Matan Koch. I have Cerebral Palsy. I use a wheelchair and personal care. My voice sounds a little different, and one of my hands is visibly contracted. In a country where my basic needs to survive are guaranteed only in poverty, the employment rate for individuals like me is a tiny fraction of the general public.

Until I was 10 years old, it was legal to discriminate against people like me in employment. I would be 12 before the law would mandate that places of public accommodation need to make themselves open to me, and grandfather clauses insure that, in many cases. they still do not. My ability to gain public education was only first legally proposed shortly before I was born, and is still often subject to litigation. I would still not be guaranteed accommodation in private school.

In many countries in the world, I am considered subhuman, a thing to be hidden, of no redeeming value as a family member, and certainly not as a professional. Short decades before my birth, states in my own country were forcibly sterilizing folks like me, and it was not until just before the turn of this century that the Supreme Court stated that I have a right to live in the community, rather than experiencing the warehousing in abysmal institutions that was the norm not long before and, sadly, has still been reported in this decade. Though an Ivy League graduate, I am regularly infantilized and presumed unable. When I roll into a job interview, there are times when, stellar resume notwithstanding, I know that it is over before it begins as people start hinting that I might be better and a job less demanding than whatever it is that they have in mind. I am the consistent object of systemic discrimination, and have it markedly better than many other Americans with disabilities.

My name is Matan Koch and for those unfamiliar with the name Matan, I am male. For thousands of years, my gender treated women as chattels, submissive property. Women got the franchise in living memory, and were legally vulnerable to sexual harassment on the job in my lifetime. The male bias in my culture is so pervasive that it is difficult to truly see.

I did not begin to understand that until a piece that I was given in high school English class made the point vividly. The author wrote a paragraph about a day in the life, but instead of defaulting to male terms for traditionally male professions and female terms for traditionally female professions, it defaulted to White for traditionally White dominated professions and Black for traditional minority professions. As a class, we viscerally reacted to reading about policewhites and sanitation blacks in a way that policeman and stewardess did not quite stand out. The generalization is frankly just as egregious, but we are still used to it that we do not see it.

My gender gets better jobs, gets paid more for the same job, and still dominates the senior positions in every industry. Basic biological realities experienced by my gender are normative and accounted for in employment, while rights around pregnancy and lactation still require a massive fight. My gender has boasted every single American President, and still dominates the clergy even in those religions where it does not have a monopoly. Sociologists tell me that my gender’s thought process is the norm of the business world, and that only now is corporate America beginning to stop telegraphing to women in business that they need to think more like men. I have an incredible advantage.

My name is Matan Koch. I am a Jew. The systematic slaughter of my people has persisted from Ancient Babylon to Nazi Germany. In many places around the world I am still hated and reviled, and would need to hide my religious identity. Even in this country, without a legal history of religious persecution, my people were subject to pervasive distrust and discrimination at least as recently as the childhood of my parents. I still face regular attempts at conversion, though, not, like my ancestors, at the point of a sword, and periodically, even in this country, some disaffected malcontent will do their darndest to go to kill a bunch of my people. The latest one, in Kansas, did not manage to kill any Jews while tragically killing three Christians, but, he was trying.

Corporate America and law firms had quotas and hiring restrictions on my religion well through the 1970s, and the voices on the radio routinely tell me this is a Christian country. If history is any judge, even the Jews of a society where they are doing well might eventually find themselves dispossessed, as were the well to do Jews of Spain in the late 15th century. I have known ethnic discrimination.

All 4 of these are true and accurate, to the best of my knowledge. They are integral parts of me. Unquestionably, my life would be harder were I a minority Jewish woman in a wheelchair, and easier if I were a nondisabled Christian White man. It seems to me that the flaw in the relatively myopic and immature Time magazine article that will not die, mentioned again in a discussion group in my house this week, is the failure to recognize that the same person can have both privileges to check and disadvantages to acknowledge.

If I am to have a meaningful discussion with a nondisabled African-American male, I need to check my White privilege, he needs to check his nondisabled privilege, and we should both be aware of the privilege that we have by being men. It is remarkably shortsighted to think that only those that have not faced disadvantage have privilege to check, and this appears to be the article’s biggest weakness. I strive to go through my life interactions cognizant of my privileges, even as I cannot escape my challenges, and I think no amount of adversity is sufficient to negate the value of that approach.

Disability, Independant Living, Law and Lawyers, Personal Care

Labor Protections for Personal Care: The Money Is Fuzzy, the Morals Are Clear

Since August 1998, when I was 16 years old, I have been dependent upon a unique class of professionals for all of my physical needs. These hard working men and women were integral to my earning two Ivy League degrees, my professional success, and really anything that I have achieved since leaving my parents’ home in 1998. On the East Coast we call them Personal Care Attendants, other regions refer to them as Personal Assistants. They, together with the slightly better trained Home Health Aides and Certified Nurse’s Aides, make up the incredible corps of giving, caring individuals that facilitate the lives of countless people with disabilities in order that they can live independently.

It will surprise few who are familiar with the economic realities of this country that, demographically speaking, this population of workers tends to be only high school educated (if that) and disproportionately minority, immigrant and female. It may be more surprising that, currently, due to a companion care exemption in the regulations implementing the FLSA, these individuals are not provided with mandatory overtime in excess of 40 hours, let alone items like sick time. (Arguably, even the current exemption is over applied, but that is outside of the scope of my post.)

The Obama administration has proposed regulations to end this exception, and they take effect soon. This is causing great consternation in the disability and caregiving communities, and Jeff Rosen, the Chairman of the National Council on Disability, on which I served until recently, has written a letter asking Labor Secretary Tom Perez to delay the implementation. The purported purpose of this delay is to

“allow DOL [Department of Labor] and the Department of Health and Human Services (HHS) more time to work with States as well as the disability and aging communities to understand the policy and operational issues, develop workable solutions on key components, and determine an appropriate course of action.”

With due respect to Chairman Rosen, this is a naked delay disguised with bureaucratic obfuscation. I was one of the moderators of the January 2013 meeting referenced in the letter, and the policy and operational issues could not be clearer.

As I said in the introductory paragraph, we who use these services are deeply aware of the value of the loyal service of these dedicated individuals. None of us want to see them get anything less than the very best, and not a single voice argued that they deserved anything less than that which is promised to other American workers.

Rather, there is a reality that no one wants to talk about. The vast majority of Americans, myself included, receive these services through government programs, the most common of which being Medicaid. Practically speaking, current state Medicaid budgets could not cover time and a half for these workers, and the likelihood of these budgets being changed simply because the Department of Labor changes the regulations is nonexistent. So what would happen?

Every current care attendant, personal assistant, or home health aide would be cut safely below 40 hours per week. I know this argument is often used to attempt to invalidate the goals and protections of the FLSA, but ask the reader to recognize that the incentives are entirely different when the person making the payment decision is completely distinct from the person benefiting from the labor. If a factory owner wants to split shifts to avoid paying overtime, that owner bears the cost of the labor inefficiency of multiple workers in the same job. The choice, whether to pay more or hire more, is a simple economic calculation, made by the decision maker. In this instance, neither the worker nor the beneficiary of the labor is making the decisions. To the budget official making Medicaid decisions, quality and continuity of care is only the most abstract consideration.

Here, essentially, everyone loses. The person with a disability loses because rather than have appropriately designed shifts balancing the needs of worker and consumer for maximum efficiency for both, they must arbitrarily break at the 40 hour line. Further, as the expression goes, good help is hard to find. To remain under 40 hours per week, the consumer may need to hire more people, and face the difficulty of fielding a larger team of staff with good skills and good fit. The person who loses most of all is the worker. There is no question that the worker would be better off working 60 hours where 20 are at time and a half than working 60 hours at time, but the real distinction is 60 hours at time versus 40.

What, then, to do? Most disability advocates are pushing strongly for the status quo, and I agree that the status quo would be better than the scenario that I outlined above. But what about real courage? What about saying to the Department of Labor and to the States “we support the proposed rule, Mr. Secretary, but we demand that part of self-determination is to free up the funds to authorize overtime as we see fit.” This would be a courageous option, protecting the rights of our caregivers while ensuring the needs of our consumers are met.

To my former colleagues, I say this. The answer is not difficult. Frankly, I have outlined our choices in two paragraphs. The hard part is gathering the conviction to push for the right decision, because this letter feels like merely trying to delay it.


There Is No Try: My Mini-Revolution When I Stopped Trying to Change the World

Any post that combines a reference to Star Wars with a reference to the Beatles is probably trying too hard, which is ironic since my goal is to write about refocusing my sights more realistically. A friend shared an article on Facebook the other day about a Yale graduate who has found success on a children’s television show. I will not link the article here, because it is not particularly germane, but something that he said stuck with me.

He said that he nearly declined the role because, though unemployed, as a classically trained Shakespearean actor, and a Yale graduate no less, it seemed insufficiently serious. Rightly or not, this got me to thinking about my own life, and how I am finding new opportunities for change by looking a little smaller.

As a teenager, I wanted to save the world. I remember going to Rabbi Jim Ponet, the Howard M Holtzman Jewish Chaplain at Yale, to ask about the likelihood of raising $2 million from wealthy Jewish alumni to meet my disability costs over a lifetime of public good. I was 17. Jim, God bless him, did not laugh outright, but did suggest to me that I probably needed a few more accomplishments before I could go to someone asking for that kind of investment. I went to law school, still looking for the role where I could change everything.

I got out of law school and found that there was no job where I could have the impact that I wanted and meet all of my financial needs. Nearly 10 years and one largely uneventful presidential appointment later, I found myself at another time of transition. Again, I began looking for the big job. I would be a nonprofit professional, or maybe start a disability consultancy to take advantage of my corporate expertise, and/or my policy expertise, in playing in including people with disabilities, while helping businesses to capture and corner the market. If those options did not work, then I was just going to search for private in-house roles. My focus was so big and so grandiose that it only really left room for all or nothing.

Nonprofit jobs were not really forthcoming, and neither for that matter was an in-house role. I found myself looking for freelance work, mostly to pay the bills. I found some, working with some wonderful nonprofits here in Boston. The income only meets a portion of my needs, but it is something. More importantly, in the few months that I have been freelancing, I have been able to contribute to 2 major advocacy pieces dealing with significant issues facing people with disabilities, I am taking the lead on a series of important recommendations on another policy issue, and I have been asked to begin to think about the structure for a program that could materially impact the lives of a disadvantaged population here in Boston. (Pardon the vagueness, none of these projects are actually public yet). None of them pay a fraction of what I am accustomed, or operate on the scope of my flights of fancy, but each will make a meaningful difference.

It is kind of amazing. Because I could not find the big opportunity, I am now faced with the opportunity to make more small, impactful contributions than ever before. I am still looking for in-house work because those bills need to be paid. I have started this blog because I realized that I could be incremental, rather than wait till I had a book to share with people. I have at least blocked out a concept website for my consulting practice, http://www.capitalizability.com, and I am ready if anyone wants to refer my first client. And, right now, and potentially even were I to take an in-house role, I am doing things that can make a difference.

Once I stopped looking for the grand opportunity consistent with the grandiose image that that 17-year-old apparently never quite left behind, and started taking the opportunities in front of my face, the myriad of little opportunities presented. And, who knows, maybe they will lead to the next one, and the one after that, until, once I have truly stopped looking or trying for it, I find my Revolution.

Does this resonate? I am certain that if you are the kind of person that reads my blog, then there is something about which you are passionate. I am also certain that you have heard all of the clichés about journeys and steps. No doubt you think yourself a grounded incrementalist, even as I did. And yet, how incremental are you? I challenge you to not pass up an opportunity to make a difference because you think it beneath you or too small. Rather, take it and be amazed at the sudden opportunity to make a difference. It took financial necessity to truly teach me this lesson, but maybe you can be a little smarter than me.