Universal Design and the Legal System: Part I, Background

While I find Twitter posts too often to be vicious, bigoted (neither in those I actually follow, but in retweet comments), frustrating and a lagoon of self-congratulatory messages (“I’m honoured and humbled to have won/been recognized for/have been included among these fabulous people….”), I also enjoy some people’s very clever humour and discover news of developments I might not otherwise see. So it is with a Tweet from @lawtech_a2j (aka the UK’s Roger Smith): “The concept of user-centred legal design has proved itself as exciting, galvanising and innovative over the last decade. Can we call it a ‘game changer’? It depends perhaps what you mean.”, a lead-in to a consideration of “user-centred legal design” (“game-changer”). Into my head popped the concept of “inclusive (or universal) design”, a fundamentally different way to think about organization. What would it mean to reorganize the legal system according to the principles of universal design?

First, I’ll summarize “game-changer”. It’s not hard to understand the basic premise of “user-centred legal design”: let’s see what the users need and respond to that, rather than what those who navigate the system for users (lawyers, for example), who provide information or services or who adjudicate legal disputes, for example, find convenient (similar to the meaning in a passage from Stefania Passera in “game-changer”). For some, those who are “internal” to the system, such as lawyers, would also be included as “users” (Margaret Hagen’s definition included in “game-changer”). Richard Mabey describes it as a “mind-set”. Roger Smith sums up the concept as follows:

Legal design is a distinctive approach with the following attributes:

1. It sees law as a process not a product – so that, for example, a legal design approach to divorce would be less concerned with divorce statutes then how someone actually attains a just separation.

2. It is user-centred. You begin with what the user wants and then rigorously analyse the process from their point of view.

3. It involves re-conceiving processes through multi-disciplinary collaboration, visualisation and a whole range of techniques that help to bring to bear new approaches to old problems.

Smith suggests the user-centred approach has its flaws and it more complicated than it may first appear (“users”, for example, are not only the downtrodden, but also the mighty); and those seeking reform tend to frame rallying cries not as process, which user-centred design is, but as a goal (“access to justice”).

The notion of reworking the legal system from the perspective of the “user” is well-established in Canada. I mention just two examples: The Final Report of the Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: Roadmap for Change (2013) articulated reforms it considered premised on the needs of the “user”; similarly, the CBA’s Reaching Equal Justice Report: An Invitation to Envision and Act (2013) sought to explain how achieve a “people-centred justice system”.

Much of the work in universal or inclusive design has been related to increasing access for persons living with disabilities, its initial reason for being. Inclusive or universal design in that context has been coupled with two other approaches, accessible design and usable design. As “Disabilities, Opportunities, Internetworking, and Technology” (“Opportunities”) states, “accessible design” is specifically targeted at persons with disabilities, ensuring that services, conditions, locations, products, technology and so forth are designed to enable persons with disabilities to use them. “Opportunities” explains, “Usability has been defined by the International Organization for Standardization as the ‘effectiveness, efficiency, and satisfaction with which a specified set of users can achieve a specified set of tasks in a particular environment'” (emphasis in original). Although the needs of persons with disabilities have not always been considered in the usability approach (rather a startling thought), this appears to be changing. Factors relevant to usability include the following:

  • Learnability: Can users easily learn how to operate the product, and can they remember how to perform tasks when they return to the product the next time?
  • Consistency: Are product features clearly and consistently labeled?
  • Efficiency and effectiveness: Can users perform tasks with a minimal amount of effort and achieve their goals successfully? (“Opportunities”)
  • Here I am less concerned with the user-centred or usability ideas (or with any limitation to or focus on persons with disabilities) as generally employed than with the broader framework concept of inclusive or universal design. However, many of the underlying purposes, applications and practical considerations of both these approaches are helpful for considering how universal design might help to increase access to justice.

    If memory serves, my first brush with universal design came at the Law Commission of Ontario, supervising our framework projects relating to older adults and the law (April 2012) and to persons with disabilities and the law (“persons with disabilities report“) (September 2012), headed by Lauren Bates. We also incorporated the notion implicitly into our capacity and decision-making project (March 2017) that combined lessons from both framework projects. The emphasis in those projects was on the contribution universal design made to increasing access to justice for persons with disabilities and older adults.

    The LCO’s persons with disabilities report recognized that disabilities exist along a continuum and that they are socially constructed, that is, a response to structures that have not made space for persons with particular disabilities:

    The universalism model posits that all people exist along a continuum of abilities and that people’s abilities will vary along this continuum throughout their lives. This acknowledgement of the near universality of impairment highlights the way in which the line between disability and non-disability is socially and politically constructed. This approach demands a widening of the range of what is considered “normal” in the context of human abilities, with the result being that more flexibility and adaptation is required in social, political and physical structures.38 To put this principle into action, inclusive design with a concomitant commitment to accessibility, is a key strategy to ensure the maximum inclusion of all people with their infinitely varying abilities. (Persons with disabilities report, p.21)

    The Center for Universal Design at the University of North Carolina (“The Center”) defines universal design this way: “‘the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.'” (Quoted in “Opportunities” and condensing the definition under the American Disabilities Act 2005 quoted here.)

    The Centre suggests that universal design incorporate two levels:

    User-Aware Design: pushing the boundaries of ‘mainstream’ products, services and environments to include as many people as possible.

    Customisable Design: design to minimise the difficulties of adaptation to particular users. (The Centre)

    Further, it is helpful to look at the micro and macro level of universal design; that is, “a single design feature or a simple product” and “combin[ing] accessible and usable design features, with customisable or adaptable features, alongside more specialised design solutions that deal with the most extreme usability issues”, respectively.

    In 1997, the Center formulated seven principles governing universal design, operationalizing them concisely as follows:

    Principle 1: Equitable Use [The design is useful and marketable to people with diverse abilities.]
    Principle 2: Flexibility in Use [The design accommodates a wide range of individual preferences and abilities.]
    Principle 3: Simple and Intuitive Use [Use of the design is easy to understand, regardless of the user’s experience, knowledge, language skills, or current concentration level.]
    Principle 4: Perceptible Information [The design communicates necessary information effectively to the user, regardless of ambient conditions or the user’s sensory abilities.]
    Principle 5: Tolerance for Error [The design minimizes hazards and the adverse consequences of accidental or unintended actions.]
    Principle 6: Low Physical Effort [The design can be used efficiently and comfortably and with a minimum of fatigue.]
    Principle 7: Size and Space for Approach and Use [Appropriate size and space is provided for approach, reach, manipulation, and use regardless of user’s body size, posture, or mobility.]

    The Center for Excellence in Universal Design refutes some common misconceptions about this approach. For example, its application does not “dilute” the original design, but makes the original as “inclusive as possible” (emphasis added); “Universal Design is not a synonym for compliance with accessible design standards”, but applies to everyone, not only to persons with disabilities, and “is not a list of specifications”; its benefits are experienced not only by persons with disabilities and older persons, but by everyone who may at different times in different contexts have greater difficulty in dealing with a situation; it is not an “add-on”, but must be integrated from the beginning of the process; it is not a “one size fits all” approach, but “a more universal solution can also incorporate, for example, customisable features that can be adapted from user to user, smart features that learn a user’s preferences after multiple uses (most relevant to ICT [information and communication technologies]), and specialised solutions to meet particular needs” and a design “should not exclude or segregate”; it is not a “goal”, but a process.

    In 2006, the United Nations Convention on the Rights of Persons with Disabilities imposed on states parties extensive obligations, including Article 4(1)(f):

    To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines.

    Article 2 defines “universal design” as

    the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.

    The Convention also requires accommodation. Article 5(3) states, “In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” It is not unusual that while universal design can address many barriers facing persons with disabilities that may also be beneficial to persons without current disabilities, a residual recognition of the need for responses particular to persons with disabilities, or reasonable accommodation, may be necessary; however, ideally the capacity for an individual response will already exist within the element at issue.

    Ontario’s 2013 Learning for All (“Learning for All”) document, a guide for assessment and instruction for all students in K-12, states as one of “our shared beliefs” that “Universal design and differentiated instruction are effective and interconnected means of meeting the learning or productivity needs of any group of students” (Learning for All, p.7). The document discusses “instructional approaches” that “both respond to the characteristics of a diverse group of students and are precisely tailored to the unique strengths and needs of every student” (Learning for All, p.8). These instructional approaches are “Universal Design for Learning (UDL), differentiated instruction, and the tiered approach to prevention and intervention” (Learning for All, p.12). In this model, certain principles apply to everyone, while certain processes are specific to students with particular needs. Rather than the actual policies or practices, UDL can also be thought of as a conceptual mindset:

    Adopting “design thinking” as a mindset can provide educators with new tools and new approaches that often yield simple solutions to complex everyday challenges that they face in the classroom today, such as how to integrate technology and how best to engage students. Design thinking is a human-centred process that begins by understanding the needs and motivation of students, parents, and educators. It nurtures creativity, collaboration, empathy, and divergent thinking skills appropriate for twenty-first-century learning and teaching. (Learning for All, p.14)

    In this sense, universal design is a practical step beyond accommodation, where feasible. Universal design, commentators have suggested, was based on the premise that the environment could be much more accessible than the minimum requirements of law to enable accessibility required, if designers focused attention on improving function for a large range of people (see Jordana L. Maisel and Molly Ranahan, “Beyond Accessibility To Universal Design” [“Beyond Accessibility”]). Maisel and Ranahan explain that universal design has moved beyond products and environments to recognition as “‘a process that enables and empowers a diverse population by improving human performance, health and wellness, and social participation'” (“Beyond Accessibility”, citation omitted).

    Universal design’s objective may not be to identify processes or whatever that can respond to everyone, but to create processes that allow for consideration of and responses to each person (or group of persons). In the K to 12 environment, then, “universal” is not meant to imply that one solution to learning will fit everyone, but rather that the approach to learning will allow individual responses that “reflect awareness of the unique nature of each learner” (Learning for All, p.14).

    On the one hand, universal design posits the principles or framework that govern the place of individualization (previously called “accommodation”?). On the other hand, “Differentiated instruction (DI) is based on the idea that because students differ significantly in their strengths, interests, learning styles, and readiness to learn, it is necessary to adapt instruction to suit these differing characteristics.” (Learning for All, p.17)

    Universal design has been widely accepted for a broad range of purposes, as well as in diverse contexts. For example, cities have adopted requirements that their buildings conform to universal design (see, for example, Goderich’s By-Law No. 22 of 2016 [the 2016 Huron County Universal Design and Accessibility Site Plan Guidelines]). The Goderich requirements make it clear that there are times when a location cannot be “universal”, as in the provision of parking spaces (By-Law No. 22, p. 25), since after all making all parking spaces available for persons with disabilities (in a large parking lot) does not accomplish the goal of ensuring the specified places are close to the destination. Structures we take for granted today might be treated as alternate rather than the norm (the provision of stairs when there is already barrier-free access to a building, for example, instead of treating stairs as the norm (By-Law No. 22, p.21). Other features can, with care, be relevant for all users, such as the selection of landscaping plants and materials (By-Law No. 22, p.29), although it is of interest that in suggesting plants with fragrance to orient people with visual impairments, the By-law may not have considered people with sensitivity to odours. The Goderich By-Law illustrates how universal design and accommodation may need to work together.

    Countries have also adopted universal design to create standards; the Norwegian Ministry of Children and Equality, for instance, has released an action plan to achieve “Norway universally designed by 2025” (“Norwegian Action Plan”), although this is directed at persons with disabilities, with this important proviso:

    The government wants to get away from a way of thinking in which the individual is defined as
    the problem and in which special measures for people with disabilities are the main solution. The universal design of the physical environment means an equal form of accessibility, so that the main solution can be used by as many people as possible. This applies not only to people with disabilities but also, for example, to families with children in pushchairs and to the elderly. The government will make systematic efforts to
    promote knowledge and stipulate a requirement of universal design in the development of the human-created environment. (Norwegian Action Plan, p.4)

    A paper prepared for the Council of Europe, although concerned primarily with persons with disabilities, explains the goal is to create a system that is in itself responsive to everyone, “diminishing the need for segregated solutions and special services” and points out,

    The challenge is to develop mainstream solutions with built-in adaptability and compatibility, accommodating as many people as possible, including people with disabilities. For people with special needs, assistive technology and personal services will be part of the total solution, and this solution will cover more people if, for example, standardised interfaces are integrated into the design. (Achieving full participation through Universal Design, p.8)

    The ubiquity of the term “universal design” can be depicted by an ad for an automated weapon security firm that promises their standard weapon locker design will allow an easy shift of equipment to a new vehicle or between vehicles. Most of us have familiarity with this from computer design. Here “standard” has the cachet of “universal design”.

    The widespread acceptability of universal or inclusive design has led to academic programs dedicated to inclusive design (for one, see the MDes degree at OCAD, which promises students they “will be equipped to excel in evolving professional fields including digital media, ICT, health, education, government and other public and private sector fields”).

    Before considering how universal design might apply to the access to justice question in my next post, I review some examples of its potential application in three specific contexts related to law.

    Michael Iseri, then of the Center for Accessible Technology in California, has discussed universal design in the context of “legal accessibility” in an ABA blog. He defines “legal accessibility” as “the act of making legal knowledge and services available to the general populace, and it involves making legal information, materials, and tools usable to everyone, including making them available in different languages and to those with disabilities.” His focus in the blog is on how lawyers should make information available to the public. He reduces the seven principles of universal design (I refer to these below) to three that he considers to be particularly relevant to the “legal field”: clarity (simplification of language and explanation, leaving no room for ambiguity), visibility (“presenting legal terms and clauses in plain view and not tucked away”) and structure (formatting to allow people to see the information more clearly).

    David Lepofsky and Randal Graham consider the application of universal design to legislation in the context of persons with disabilities. They write, “The basic premises of Universal Design are (i) that persons with disabilities ought to have meaningful access to the same products, buildings, and facilities as everyone else and (ii) that enhanced accessibility benefits everyone.” The first step in ensuring access is to understand the barriers to access; in the context of persons with disabilities, these are attitudinal, physical, communication, informational and legal or bureaucratic barriers. It is easy to see how at least some of these barriers, such as communication, informational and bureaucratic, might apply more generally, thereby impeding persons whose first language is not English (or French) or who have low education levels, for example. Identifying barriers is “an introspective, philosophical step” requiring creativity, but it must be accompanied by “practical tools, tips, and strategies that help to implement the vision of a barrier-free legislative landscape”. These are the same requirements for applying universal design to the broader legal system more generally.

    In yet another law-related context, Meredith George and Wendy Newby discuss universal design as an alternative to accommodations in legal education in 2008 (George and Newby). (I note that George and Newby’s article is concerned with judicial interpretation of the Americans with Disabilities Act (1990) and they “examine some case studies that present particular difficulties for determining how to provide ‘access’ without overaccommodating or providing an undue advantage to an individual with a disability” (George and Newby, p.476). They identify some concerns with the drafting of the ADA Lepofsky and Graham also identify with legislation generally. My own interest here, however, is to extrapolate how universal design might apply in this context and not with the interpretation of the ADA up to 2008 or subsequently.

    Most of George and Newby’s article actually focuses on the difficulty with the accommodations model (and not surprisingly, much of that is about assessment and measurement) and only a small portion on applying universal design to legal education. Nevertheless, it is worth noting a couple of points from the article. Rather than in-class tests, for example, instructors would use take-home tests that “would be more flexible, tolerant of error, and equitable than an in-class exam with its strict time limits because it allows students to plan, write, and self-evaluate their work within time frames that suit their needs” (George and Newby, p.493), as well as other forms of evaluation that are applicable to everyone while at the same time allowing different learning practices (p.496). Of course, take-home exams, as well as these other methods, are far more commonly used as an assessment tool than they used to be. They reproduce The Center for Applied Special Technology (CAST)’s

    core principles of instruction that would be accessible to the widest range of
    learners:

      • Multiple means of representation to give learners various ways of acquiring information and knowledge,
      • Multiple means of action and expression to provide learners alternatives for demonstrating what they know, and
      • Multiple means of engagement to tap into learners’ interests, challenge them
      appropriately, and motivate them to learn.

    (George and Newby, p.494)

    To sum up, the point of universal design in legal education is

    to find a manner in which the instructional goals of the professional education in law could be delivered to adapt to the differences among learners rather than rely exclusively on the learners, who may have limited adaptive capacities, to adjust to historically practiced pedagogical methodologies. (George and Newby, p. 497)

    In “Bridging the Law School Learning Gap through Universal Design“, Jennifer Jolly-Ryan provides detailed examples of what we would think of as “accommodations” for certain groups of law school learners (differently abled, ESL speakers and part-time students) that in fact can benefit other groups of learners or any learners who might merely be distracted on any given occasion, relating them to the principles of universal design. Her examples show that while the principles can be read in a limited way as reflecting their inception in the movement to increase access to persons with disabilities, they can also be read to a wide range of circumstances that make compliance with traditional expectations difficult. As she explains, however,

    The Universal Design of instruction, through a variety of teaching strategies and techniques will reach all law students, and will avoid the necessity of many of the often stigmatizing instructional accommodations or curricular modifications offered to one or two students in a law school classroom. The result of Universal Design of instruction in the law school classroom will be a better learning environment for all students and an energized, creative professor who adds new dimensions to teaching the law. (Bridging the Gap, 1396, citation omitted)

    (As an aside, this article might be helpful for law professors seeking to bring universal design principles into the classroom, although at least some of Jolly-Ryan’s recommendations may have been adopted during the pandemic, since they relate to the use of technology.)

    Universal or inclusive design requires us to disassemble the norm and redesign a system to reflect that all people are different from each other, in diverse ways. In this, it reminds me of the goals of feminist, anti-racist and other paths to the dismantling of law in order to create systems that reflect not only male, white and other experiences but those who were or have been excluded. For many reasons, these are not quick and easy tasks for anyone, whether conceptually or in practice. Universal design is a perhaps a weak relative of these significant projects to achieve equity, or it may be one means to achieving it.

    Conceived as an approach that allows transcending treating persons with disabilities “differently” or requiring persons with disabilities to make individual claims for accommodation as a norm, universal design now acknowledges that there are many different ways in which people are unable to be effective in existing parameters and it has expanded to different contexts, including those associated with law. In my next post, I look at the extent the universal design framework might be applied to the legal system: is it feasible to apply its principles to make the legal system accessible to everyone, or at least to create a system that includes built-in ways to acknowledge different needs?

    Comments

    1. Excellent and informative. Looking forward to the remainder.

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