Dissing Ability: Interview with Professor Tory L. Lucas

To correct a disabling view of people with disabilities, Professor Tory L. Lucas prescribes a paradigm shift that permanently redirects the focus from disability to ability. If America achieves this hopeful vision to no longer diss—or disrespect—ability, then people with disabilities will enjoy equal access to equal opportunity.

Professor Tory L. Lucas has served on the faculty of Liberty University School of Law since 2011. During his legal career, Tory has been a trial lawyer in private practice, served as a judge advocate in the U.S. Air Force, clerked for two federal judges on the U.S. Court of Appeals for the Eighth Circuit, published seventeen articles, and taught law at Creighton University School of Law, Stetson University College of Law, the University of Nebraska College of Law, and Liberty Law. Tory teaches Property, Federal Jurisdiction, and Disability Law. Tory received his B.A. degree, Magna Cum Laude, from Culver-Stockton College. He was the first person in his family to attend college, and he now serves on the Board of Trustees of that college. Tory also earned his J.D. degree, Summa Cum Laude, from Creighton University School of Law and his LL.M. degree from the University of Missouri-Kansas City School of Law, where he was the Arthur Mag Fellow of Law. Tory is married to Megan A. Lucas, who serves as the CEO and Chief Economic Development Officer of the Lynchburg Regional Business Alliance.


To download Professor Lucas’ article for free, go to https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3905465


Read the Interview Transcript

Hugh Ballou: Hello, it’s Hugh Ballou, back for another episode of The Nonprofit Exchange. We interview somebody every week, and every week has been so special for me because there are amazing people doing amazing things. Today is an episode like we have not had before. It’s to stimulate our thinking, open our eyes, and be aware of things right around us. Professor Tory Lucas, dear friend of mine, lives in the same town, is doing amazing work as a professor of law at Liberty. Tory, tell people about who you are and why you have a passion for today’s topic, “Dissing Ability.”  

Tory Lucas: Thanks, Hugh. I am so grateful you’re giving me this platform and the opportunity to talk about disability law. I’m a first-generation college student. Nobody had gone to college in my family. I had seen growing up a number of marginalized people, including people with disabilities, including an uncle of mine. I saw how society placed irrational barriers to their ability to participate equally in our society.

Education has unlocked every single opportunity for me. I went to college and law school. I was a trial lawyer in private practice. I served as a judge advocate in the U.S. Air Force. Clerked for a couple federal judges. Then I got into teaching. I taught at three law schools: Stetson, Creighton, and Nebraska. For the last 11 years, I have been at Liberty.

The reason I wrote this paper—and I have a little prop here, my “Dissing Ability” paper, or as my mom calls it, a book—because it was my entire world view over my entire lifetime that America had created a false construct on people with disabilities. I wrote this article as a prescription to change the vision of Americans to stop looking at disability and start looking at ability. The name of the article means that if you focus on disability, you actually disrespect ability. My vision is that we focus on the ability side and not the disability side.

Hugh: I heard you speak recently at my Rotary club. I was astounded. I know something about this thanks to one of my friends, Daniel Hodges. He’s taught me a lot. I just didn’t know before. Mostly, we ignore people. We’re uncomfortable. What are some things that we don’t know that we should know about people with different abilities?

Tory: Some of the things that we do in society are based on a historical construct. In the article, I contrast the horrors of focusing on disability with the hope that comes with focusing on ability. Historically, we excluded people with disabilities. We dehumanized them by stigmatizing them with various terms: “idiot,” “feeble-minded,” “morons.” These were all constructs that we built that were burdensome and harmful. Society created sophisticated exclusionary regimes that we’re still trying to overcome.

One was immigration laws. We thought that as Americans, you had to be independent, stand on your own two feet. We equated disability with inability, and that’s not what we wanted. We have strict immigration laws that would keep people excluded. Then we had anti-marrying laws. We had institution laws. We even had ugly laws, where many cities said that if you were deformed or had a disability, you could not show yourself in public.

Over the 18th, 19th, and 20th centuries, as you don’t integrate, as you don’t see people with disabilities, you see them based on a caricature, a false story about them. This exclusionary regime that we built up really took an ugly turn at the early 20th century as Darwinism and social eugenics moved to the forefront of our thinking. We moved from exclusionary principles to elimination principles.

Hugh: There is an example over the river here in Virginia. Your wife runs the business alliance here, and she is making tracks to change that image. Talk about the training center, or what it was called over the years.

Tory: As you exclude people from society, you don’t get to see any of their abilities or talents. Then the costs go up. Now society really sees people who are invisible as harmful and burdensome. As we built these warehouses, or in our case these hospitals for the feeble-minded and epileptics- Just think about the perversity of this. As the burdens of taking care of them went up, we thought the costs were too great, so maybe we can eliminate them. We started a forced sterilization program. Virginia led the way. America sterilized 65,000 people with disabilities: people who were blind, deaf, tuberculosis, epilepsy, mental illness, but usually poor, invisible. The wrong story was being told.

Just a few miles from where you and I are, Carrie Buck was sterilized. Her mother was a prostitute in this region, so she was thrown into the hospital for loose morals. Her daughter was then thrown into foster care, where she was raped. That was seen as another person with loose morals, so she was thrown into the same hospital. When she gave birth, a nurse decided that this little infant was also feeble-minded, so this case went to the Virginia Supreme Court, the U.S. Supreme Court out of the Lynchburg Region. Our court, 8-1, said it was constitutional for a state to forcibly sterilize people with disabilities. “Three generations of imbeciles are enough,” is what Justice Holmes wrote.

All they did in all of these cases was focus on disabilities. There was no story about ability. Nothing at all. That incessant focus is easy to do. My vision is for people to stop looking at disability and transform their vision to see ability, too.

Hugh: You mentioned Darwin earlier. I know that Darwin influenced Hitler and Marx in their thinking. What impact did that kind of thinking have on this methodology?

Tory: Darwin was the source of eugenics. American thinkers followed the cruel history of only looking at disability and not ability, and they thought we were weaker in our society if we had burdensome individuals. People with disabilities were seen as not having any ability and could not contribute and were actually a harm to the herd, if you will. That took root here in Virginia and Indiana and spread across America. As you mentioned, Adolf Hitler was watching what we were doing. He wanted to implement what we were doing. He then sterilized 400,000 people with disabilities.

Think about it. If you dehumanize and stigmatize and exclude people because they are burdensome and harmful and you have no idea what their abilities are, once you can eliminate offspring, and that’s rational, can you take the next step and just eliminate the living? Of course, Hitler took that next step and executed 200,000 people with disabilities.

Hugh: I didn’t know any of this stuff until you talked to our Rotary. At the beginning of our pandemic, Bishop Younger of the RAMP Church here gathered people at the foot of Monument Stairs, where there is a monument of all of our wars. He said, “My relatives fought in those wars, but they didn’t have any rights when they came home.” We were all gathered there. It was representative of our population. He said, “We aren’t the generation that caused this. We are the generation that can heal this.” Looking at it through our lens, how do we and this generation heal some of these problems?

Tory: I was at that event as well. That was a really great evening. I love Bishop Younger and the RAMP Church. On that topic, it was race. Race is another false construct. America created this perverse construct that Black people were somehow less than white people. We created a disability, if you will, by looking at the wrong thing and missed telling people’s stories. All these false, perverse, irrational, and bigoted constructs that we build based on false stereotypes have to be dismantled brick by brick. It doesn’t matter if it deals with sex, race, or disability; it’s a perverse construct when you mistell somebody’s story. You’re looking over here where you think their story is, but that’s not their story. The story is on the opposite side.

For me, the only reason I’m on this show today is if we can get some of your listeners, when they see a disability, if they can just pause and don’t equate that with inability and look for the ability side- I’ll give you a vision test. I did this at the Rotary. We’ll do it for everybody. Do you think that a person without a right hand can pitch in Major League Baseball? Jim Abbott did. Do you think that a person who has never kicked a football and has never played football can be a kicking coach in the NFL? Doug Blevins for the Miami Dolphins was just that. He was a world-class coach. If you focus on disability, you’re going to diss ability. Look at the ability side. Do you think a president has to stand and walk? President Roosevelt didn’t; he used a wheelchair. Even though his legs could not take him onto a stage, his abilities took him onto the world stage, and he got us through the Depression and a world war. We could go on and on with these stories. If you incessantly focus on disability, it’s the wrong place. Focus on ability.

Hugh: We can point fingers. But if you look at who participated, our corporations participated, our social clubs, our churches. Everybody was a part of this. It was visible to us.

Tory: It’s hard to believe. I’m certainly not casting stones, but until we see the real story in each one of us- The greatness in America lies in removing barriers and moving forward together and letting somebody’s story and potential come out. What we have done in the disability area was look in the wrong place. Fortunately, in the 20th century, we started to move in the right direction.

You mentioned war. War was a big opportunity for people with disabilities for two reasons. As “able-bodied” men went off to fight, we had to support the war effort. Women and Black people and people with disabilities poured into the workplace, and they performed great. It was very difficult to say they didn’t have ability once we saw people performing.

The second thing that happened was as soldiers were coming back from the battlefield, they had brain injuries and lost arms or legs. All types of disabilities. It was very hard for society to dispose of them at that point, to say they are worthless or harmful. World wars actually helped us see the potential for people with disabilities.

Hugh: That’s remarkable. Hold up your book as your mom calls it. Professor Lucas has graciously provided a link, so you can download it and have a copy for your own use.

Tory: My mom calls it a book; I call it an article. What they will find is the historical development of how we created legal barriers, attitudinal barriers, architectural barriers, all these structural barriers to people with disabilities and their abilities. It shows the horrors of the past. Then it transitions into the hope for the future. It goes through the Civil Rights Movement. It was about 2.5 decades behind the Civil Rights Movement for other classes of people.

Hugh, this is the only class that every single one of us can join in a moment’s notice, whether by age, genetics, or an accident. If your chair collapsed under you, or the ceiling over you, you would join this class instantly. The barriers that were placed in front of others that you didn’t recognize, you’d see every single day. The vision of this paper is just a paradigm shift. It’s a prescription on how to view people with disabilities, so we get rid of every single barrier to unlocking their full potential.

Hugh: For the record, I’ve never heard you be critical of anybody. You just presented the facts, and you do it in a fair and direct manner. You don’t sugarcoat it; this is the way it is. I commend you for that. We get sidetracked thinking about things that maybe don’t matter a lot. We get sidetracked with social issues, and it seems to change year after year. We ignore different groups. 26% of our population we would classify in this category. What are some of the things we can do, starting with awareness and going forward?

Tory: I love it. I love that you recognize this is the largest American minority. The call to action today is just that paradigm shift, and it’s a vision test. When you see a person’s disability, can you see past that? We have had to deal with that with race. People would have a negative stereotypical view of race. You have to get past that. Your vision is obscured by some bigotry. You have to look in another direction for that person’s story of ability. Same thing historically with women. You look at a woman and think you know something, but that is a stereotypical and bigoted view. Watch the story emerge, and don’t mistell the story. It really is a vision test. When they see a disability, see if they are equating that somehow with an inability, burden, or harm, and wait for the story. What I really want is if your listeners would right now think of all the stories of inability in their own lives, friends’ lives, children’s lives, grandparents’ lives, co-workers’ lives, and that is where the magic is going to take place.

Hugh: That’s super. You mentioned a left-handed pitcher. Ravel wrote a concerto for a particular pianist who only had a left hand with orchestra. You’re familiar with the hymns of Fanny Crosby?

Tory: A little bit.

Hugh: 8,000 hymns she wrote.

Tory: Unbelievable, yeah.

Hugh: She was blind from the doctors putting the wrong drops in her eyes, so she never could see when she was born. Her friend Phoebe Knapp played this song. “What a foretaste of glory, I see” were the words that came out of her mouth. It wasn’t fashionable for women to write at those times, so she used pen names. She was a personal dinner guest of five presidents. She wasn’t head of state; she was a hymn writer. She traveled all over the world. She wrote an autobiography at 92 and had to rewrite it at 95.

Tory: Still doing things.

Hugh: You got some more stories like that? There are people who just do it regardless.

Tory: Every one of us has an inability. We all have complicated stories. There are a lot of things I can’t do. Whether I can’t do them because of a disability or inability, that’s irrelevant. My story is based on education, which unlocks so many opportunities. That is everybody’s story. I have never been in a job interview for example where somebody said, “Tory, tell me five things you can’t do.” They always ask me what I can do. People with disabilities, it’s just the opposite. We’re focused on the negative. You might say, “Can you do this or that?” Just tell us what you can do, and you’d be amazed at what could happen.

Let me tell you a couple more stories. There was a guy named Douglas Bader who was a British pilot. He was a daredevil of sorts. One day, his daredeviling adventures got him injured. Tip of his plane hit the ground, and he crashed and lost both legs, but he lived. He learned how to walk, how to dance, how to play golf. Then World War II started. He wanted to fly. The Royal Air Force said, “If you’re a pilot, you have to have two legs.” Douglas Bader said, “I’m a pilot regardless of whether I have my legs.” They kept saying, “No, you don’t have the ability.” Finally, they let him fly. He had prosthetic tin legs. In the war, he was a flying ace, so he could certainly fly even though he didn’t have two legs like everyone else. Then he was shot down. As he was stuck in the aircraft, his legs are stuck. He actually was able to get out because he had disposable legs. Any other pilot would have died in that crash. Only a pilot with no legs would have lived.

Hugh: That makes you think.

Tory: How about this? I tell some stories of Reverend Harold Wilke in my article. Reverend Wilke was born with no arms. When his mother was carrying Reverend Wilke in the store, a woman said, “I heard the church bells toll the death of an infant. I hope that it was your kid.” The mom was taken aback by that and said, “No, a life is better. He can live.”

A few years later, the mother was with a friend. Young Harold was on the floor without a shirt, and his mother put his shirt right next to him. Harold was trying to put the shirt on without arms, and it wasn’t easy. The mother’s friend said, “Would you help that kid?” The mother said, “I am helping him. He can put that shirt on. You just see his disability; he has the ability to put on that shirt.”

Harold learned how to drive. He drove his family across America with no arms on a vacation just like anyone else would.

He wanted to become a preacher. In his tradition, there was an infant baptism. They said, “You have to have two arms in order to baptize, hold the baby, and take the drop of water onto the baby’s head.” Harold said, “You’re focused on my disability. I have the ability to do a baptism.” He reached down, kissed the water, and kissed the child’s forehead with the three ecclesiastically pure drops, which is probably a more intimate baptism than a person who has hands.

Reverend Wilke gave a prayer at the signings of the Americans with Disabilities Act in 1990. It was the first time there had ever been a prayer at a bill signing. 3,000 people showed up for that. No bill signing in the history of America ever had that many people. There probably never will be again. Why is that, Hugh? Because these people were invisible. They were excluded. Their stories weren’t told. Of course they were going to come out.

Hugh: How can we as a member of any institution be an advocate for this? I still think we have a long way to go to be more inclusive. It ought to be part of the organization’s policy of inclusivity.

Tory: I agree. In my paper, I say that if you focus on disability, that leads to dependence. If you focus on ability, you focus on independence. If you focus on disability, that leads to exclusion. If you focus on ability, that leads to inclusion. If you focus on disability, it leads to elimination. If you focus on ability, it leads to equal access to equal opportunity.

I’d encourage all of us not to look at society for the change. It starts in the mirror every single morning when we get up. We make a commitment that we are not going to construct a false narrative of the potential of everyone around us. We will listen to their story rather than mistelling it.

Hugh: That’s amazing. Tory, you are a professor of law at Liberty. You have two areas of specialty. One is disability. What is the other one?

Tory: I’m probably more of a generalist. I love all the areas of law. Federal courts and federal jurisdiction is one area. I also teach property law for first-year property students. Disability law is really the worldview that I think brings a passion.

You talked about churches. Churches have a very simple mandate. That is to love others as you’d love yourself. The golden rule is in all major religions. It is at the heart of what America is supposed to do. Get out of people’s way. Stop putting irrational barriers in front of them. If you are ever going to create a barrier, pray to God you and your family live under those barriers. None of us would do that. We simply have to get rid of all the irrational barriers to God-given potential. Every one of us deserves that, and every one of us wants that.

Hugh: Give us some ideas of how to be an advocate in any organization that we belong to. Many of us lead organizations, so we can certainly be an advocate in our organization. We can certainly get a group together. In my history, getting a group of people who are passionate about a topic to come up with some process together is a way to make sure it gets to the finish line. Do you have any ideas for people who are not in charge? How do we come together in a non-combative way, especially churches?

Tory: First, tell the story. One of the things we have seen in the horrors of our past is we mistell stories and exclude them. As you exclude them, their talents and abilities aren’t part of society. That false narrative starts to take shape. All of us should celebrate all of the diverse stories and abilities in our midst. The first is to tell a disability story.

The second, from an employment perspective, is really helpful. I think every one of us would love to work for an employer who said, “Hugh, what can I do to help you succeed?” That question will be answered differently based on anybody’s abilities. A person with a disability might need an accommodation. It’s not a handout. It’s not saying that we’re letting someone who is inferior in. It’s unlocking the potential of a person. With that accommodation, they might be able to perform better than any other candidate. Those two things in tandem can really unlock a lot of potential.

Hugh: You’re inclusive by your very manner. Your language, your demeanor, you’re very inclusive. Sometimes we get so passionate about things that we tend to come across as aggressive when we’re assertive. You represent the law. There is a legal aspect to this. Talk about how to be assertive, not aggressive, for believers in this. Where do we fit in with the law?

Tory: Whether you’re advocating within the law or without the law, to me, any advocacy starts with thinking about something. If your thinking is faulty, then your advocacy will be faulty. If you think about something in a faulty way, you will write and speak about it in a faulty way. First, we have to get our thinking right. That’s why this vision paradigm shift is so important. My prescription to not incessantly focus on disability but on the ability, once we’re thinking appropriately and looking in the right direction, we can start to tell stories.

Hugh, if you have ever thought about why people write and speak, we’re overdosing in society now. People have something to say. That’s not the reason you say anything. I did not come on here just to say something. I came on here to package what I have to say so you and others can hear it. That is the only reason we should advocate, not to say something. There is too much of this, “Shut up and listen. I have something to say.” Nobody is going to listen to that. People listening to my voice right now are not going to do something because I tell them to do something. They’re going to do it because they believe that their mind has made a choice to do it. The only reason that we should speak and advocate is so that it can be received in the way that we want it. Hopefully you and I have done just that in the last 30 minutes.

Hugh: Is there anything I haven’t asked that I should before we reach the end of this great interview?

Tory: First, I thought it was great I was able to see you at the Rotary talk. You had some great follow-up questions. We spent the last few months trying to coordinate our schedules for this opportunity. I can’t tell you how much I appreciate your platform for giving me access to more people.

Hugh: I’m so pleased that you’re here. It’s meant a lot to me. Many times in my life, people saw me as nothing but potential, but they gave me a chance. I was directing a choir at 18; I hadn’t been in a choir. I studied piano. But somebody gave me a chance. People looked at me as potential. That’s a good rule for all of us. Look at people as potential. I’m grateful personally for what you’ve shared as you’ve opened my eyes to that.

Tory: Thank you.

Hugh: What’s a closing thought you’d like to share?

Tory: Let’s leave it at that. The potential that God has created in every single one of us is valuable. We should do everything we can in society to get rid of irrational barriers, to try to find a way to unleash that potential.

I’ll leave your listeners with this. I’m not sure if this is a true statement, but it sure seems true to me. When you help someone else unleash their potential, it will never come back on you in a negative way.

Hugh: You heard it right here. Tory Lucas, thank you for being our guest today.

Tory: Thank you.

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