Hamilton Herald Masthead Attorneys Insurance Mutual of the South

Editorial


Front Page - Friday, October 27, 2017

Finding joy in fighting for a ‘higher purpose‘


Gilbert loves a challenge, especially when it involves helping children



Every client who’s needed an attorney to fight for justice on their behalf has needed Atticus Finch. Some – a single mother being wrongfully evicted from her apartment, a man accused of a crime he didn’t commit and a juvenile who’s made mistakes – are fortunate to find him.

Luka Hyde, a young boy with Down syndrome, needed Finch. He’d been fully included in the regular education classroom at his zoned school, Normal Park Elementary in Chattanooga, for four years. As he neared third grade (and annual state testing, mother Deborah notes), the principal decided Hyde would be removed from Normal Park and sent to Red Bank Elementary, where he’d be placed in a special education classroom.

Deborah and Hyde’s father, Greg, filed for due process under the Individuals with Disabilities Education Act to protect their son’s right to be educated with his non-disabled friends in his zoned school. Without an attorney to advocate for Hyde’s rights, they lost.

For the appeal, they hired Finch.

Finch is a fictional character who represents a black defendant in a criminal trial in the novel, “To Kill a Mockingbird.” But any attorney can fill that role.

The Legal Aid lawyer who represents her client in a landlord-tenant battle is Finch. The criminal defense attorney who stands outside a prison cell and tells an accused man he’s not alone is Finch. And the counselor who takes on the case of a troubled youth pro bono is Finch.

Deborah found Finch in Justin Gilbert, a Chattanooga attorney who takes cases involving disability laws.

As the Hamilton County and Tennessee Departments of Education reiterated their case, Gilbert brandished copies of the IDEA, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, all of which protect the right of individuals with disabilities to be fully included, and said, “Not so fast.”

Gilbert successfully represented Hyde’s rights to be educated in his “least restrictive environment,” a legal principle being tested around the U.S.

After winning Hyde’s case, Gilbert packed his bags and headed to Detroit where the city’s Teacher of the Year in 2014 is fighting the same battle on behalf of her child.

“Many school districts now require kids with Down syndrome to be educated with their non-disabled peers, but there are pockets around the country that are still behind,” Gilbert acknowledges. “Those are challenging cases, but kids with intellectual disabilities advance more quickly when they associate with non-disabled peers.”

Gilbert hopes the precedent he set with the Hyde case will be used around the country to keep children with Down syndrome in their least restrictive environment.

“I sometimes tell parents and employees that their case is important to them, but because it’s a novel situation, we’re also fighting to make sure another person doesn’t go through the same thing,” Gilbert says. “In most cases, they see the higher purpose.”

Isabella League

Gilbert also saw a higher purpose in the case of Isabella League, a young Knox County girl with Down syndrome. Unlike Luka’s case, which involved the legal principle of least restrictive environment, League suffered inappropriate disciplinary measures at her school, Gilbert explains.

To control what they perceived as a disciplinary problem, Isabella’s teachers placed her within the confines of a standing and folded gym mat (4 feet by 4 feet) 21 times over the course of four days. This violated the Special Education Behavior Supports Act, which the Tennessee Legislature passed to provide guidance in cases involving the restraint and isolation of special education students.

The defense said the teacher’s actions were no different than putting a child in time out. Gilbert called it nothing less than abuse. “Sadly, child abuse happens everywhere,” he says.

Gilbert prevailed in the matter. His victory in the case made him the first attorney to secure a verdict under SEBSA.

From there, Gilbert began work on a series of isolation and restraint cases across the state. In addition to handling cases in which children were placed in cubicles or closets, Gilbert used the precedent established in League’s case to help a child who’d been confined to a room smaller than 40 square feet in size. He also shut down old bathrooms one school had converted into isolation spaces.

Hyde and League’s cases both illustrate a constant factor in the cases Gilbert takes – none of them are easy. From the emotionally taxing nature of the proceedings to the slow-moving wheels of justice, there are more bumps in the road than most attorneys would like.

“When a child is changing and the school year is passing, getting those cases through the courts is stressful,” Gilbert admits. “The laws are complex, and the more complex they are, the harder a case is to resolve.”

But Gilbert isn’t looking for easy. He likes the compelling nature of his clients’ stories and finds the legal issues involved interesting. Moreover, when a case is difficult, it tends to also be rewarding to win.

“The most challenging, but also the most meaningful, cases are the ones involving abuse – when a child with a disability experiences an abusive educational environment,” Gilbert says. “If I’m able to get that child out of a bad situation and into a better one – and secure compensation for the parents – then I can feel good about the work I’ve done.”

Jacqui Helbert

Gilbert can take pride in what he’s accomplished on behalf of journalist Jacqui Helbert, who hired him to represent her in a case regarding a violation of her freedom of speech.

Helbert, 33, is a former employee of WUTC, a National Public Radio affiliate owned by the University of Tennessee at Chattanooga.

She lost her job as a reporter with the station in the wake of a controversial story she wrote about a meeting between high school students from Cleveland, Tennessee, and a pair of legislators.

On March 7, the students, who’d formed a group called the Gay-Straight Alliance, met separately with Sen. Mike Bell (R) and Rep. Kevin Brooks (R) to discuss a now-dead bill that would compel transgender people to use the public school bathroom that corresponded to their sex at birth.

Decked out in bulky headphones, cumbersome recording gear and a press pass, Helbert accompanied the students and captured the day’s conversations. Although she did not identify herself to the legislators as a reporter, she did introduce herself and shake their hands.

During the meetings, Bell rejected the legitimacy of transgender identities, calling them “hogwash,” adding he would likely vote against the bill because of its divisive nature.

After Herbert’s story about the meetings aired, Bell said he was unaware he was being recorded. The piece also angered certain legislators – who hold the university’s purse strings.

Two weeks after the meetings, UTC terminated Helbert. In a statement, a university spokesman said the school’s decision to fire her was “based on a violation of journalism ethics.”

It was a heavy blow to the young journalist’s career.

In the hopes of bringing about change that would prevent the same thing from happening to another reporter, Helbert decided to sue the university. The first attorney she spoke with told her she didn’t have a case because Tennessee is an at-will state, meaning employers have broad rights to terminate employees.

Through a relative, Helbert then met with Gilbert, who, in addition to his IDEA and ADA work, represents individuals in employment disputes. He told her she did have a case. Seven months later, the parties involved are working toward a settlement.

Meanwhile, Helbert has taken a job with a podcasting company out of San Francisco. “Mr. Gilbert saved my career,” she points out. “Without him, I would have lost my integrity as a journalist.”

Finding a niche

Gilbert did not set out to become an attorney who advocates for individuals in disability, employment, age discrimination and sexual harassment cases. A Middle Tennessee native who spent his high school years in Arkansas, Gilbert hoped to become an international lawyer.

After earning his Juris Doctor from Southern Methodist University in Dallas, he spent an additional year earning a Master of Laws degree at the University of Edinburgh in Scotland. “I thought I’d need an international degree to be an international lawyer.’’

But when Gilbert returned to Dallas, a large firm that practiced U.S. law offered him a job. He took it.

While there, Gilbert was exposed to ADA work for employers and institutions. Instead of representing individuals, he defended companies and schools against lawsuits and kept those entities in compliance with the law.

After two years of being stuck in traffic, Gilbert and his recent bride, Lynda, decided Dallas was too hectic for them and moved to Jackson, Tennessee, where Gilbert’s parents lived. Once settled in, Gilbert joined a local firm, where he continued to do employer- and institution-side ADA work.

Over time, something began to shift within Gilbert. He didn’t develop a distaste for representing employers and institutions, but he did reach a point where he wanted to switch sides and advocate for individuals instead.

“There were cases in which the employer was right – and winning those cases was rewarding,” Gilbert recalls. “But there were also times when I was successful but felt like a different outcome would have been reached had I been on the other side.”

In 1998, Gilbert struck out on his own. He launched The Gilbert Firm as a one-man operation and began representing individuals in the kinds of cases he’d become good at winning for the other side.

“I felt there was a greater need there that wasn’t being met. There weren’t many lawyers who knew their way around that side of the law. Plus, I was more aligned philosophically to the individual’s interest,” Gilbert explains.

“I like representing individuals. I feel like I can make a difference in their lives,” he continues. “I also like being able to pick the cases with the issues I want to advocate for.”

Gilbert gradually hired more lawyers and opened an office in Franklin, which put him near the federal courthouse in Middle Tennessee, where he presented many of his cases.

In 2011, Gilbert began to consider opening an office in Chattanooga for the same reason. He was planning to send an associate to get things rolling when he fell in love with the city while scouting for locations. “If anyone was going to move to Chattanooga, it was going to be me,” he says.

Before making the leap to the Scenic City, however, Gilbert had to win over one of the toughest juries he’d ever faced. It didn’t go well.

“Lynda and I read a book about how to tell your kids who might be frightened about switching schools that you’re moving to another city,” adds Gilbert, a father of four. “The author said to prepare their favorite dinner and make it an upbeat occasion. But when we told them we were moving, they all cried.”

Mom and dad threw out the jury’s verdict and moved everyone to Chattanooga, anyway. Today, Gilbert runs the firm – Gilbert McWherter Scott Bobbitt – from his office in the Tallan Financial Center downtown.

He also devotes time to writing literature he hopes will help people better understand the issues he’s tackled in his cases.

In addition to drafting legal guidance for attorneys, judges and teachers to help them understand how children with Down syndrome can be included with their peers, he’s putting together a resource book for parents on how to tackle the challenges of inclusion.

“It’s like learning a foreign language by being immersed in the culture that speaks it,” Gilbert says. “It works better and faster – and it can help them for the rest of their lives.”

Gilbert hopes to have the latter book completed by December.

The one that got away

While Gilbert can look back on a string of successes, no attorney wins every case – especially Finch. While Gilbert usually gleans his lessons from his losses and moves on, one case still haunts him.

“A few years ago, I represented a horse trainer who was badly injured when a horse kicked him in the head,” Gilbert explains. “Instead of providing him proper medical treatment, the horse’s owner required the trainer to be evaluated and stitched with thick horse stitches by a veterinarian, not a medical doctor.

“When the trainer protested, the owner fired him.”

Gilbert took the resulting retaliation case all the way to the Tennessee Supreme Court, where he lost.

“The Court said the trainer should have complained to someone other than the owner,” Gilbert explains. “Of course, there isn’t anyone higher than the owner, and no one else to complain to. That decision still bothers me because it’s wrong – very wrong – on many levels.”

Life in the Scenic City

Although Gilbert lost his opening argument with his jury of four kids, the city of Chattanooga eventually won everyone over, so dad is no longer on the hook for the move.

The family has made its home on Signal Mountain, which serves as a base of operations from which the children attend various public and private schools and play competitive tennis.

Gilbert and his wife have been married 22 years – one less year than Gilbert has been practicing law. While they don’t play tennis, they do enjoy hiking together, and the 49-year-old Gilbert occasionally gets together with “some old men to play old-men basketball.”

A family photograph in Gilbert’s office shows a cluster of bright smiles. As the attorney gathers together with a few of his clients one afternoon at Centennial Park in Chattanooga to celebrate their victories, a similar smile has formed on the face of Hyde, who today is in a classroom with his non-disabled friends because of the work Gilbert has done.

“Without Mr. Gilbert’s excellent representation and expertise, our son would have been denied any real education and ultimately the opportunity for further education, employment and independent living,” Luka Hyde’s mother, Deborah, says. “Mr. Gilbert is an expert advocate for the rights of those with disabilities, and his work is changing the future for students with disabilities in Tennessee.”

League is sporting an equally radiant smile. As she sits on a park bench with Gilbert and looks up at him, her face is beaming. League might be young, but she remembers the abuse she suffered and understands what her attorney did for her and her family.

League’s mother, Donna Taylor, echoes Deborah’s words about Gilbert. “Justin has been a God-send to Isabella. He’s a remarkable person and lawyer,” she adds. “He’s worked countless hours on her behalf. Things change when men like Justin take on problems.”

Across town, Helbert is sitting alone at a table at the Frothy Monkey, her gaze fixed on her laptop as she commutes online to the West Coast, where she was able to secure a job thanks to Gilbert’s zealous advocacy in her case.

“He’s a true advocate,” she says. “He cares about people.”

The same could be said about Finch – not the fictional character that populates the pages of Harper Lee’s classic novel but the idealistic and determined attorney who rises up in every advocate who, like Gilbert, spends their days and nights fighting for justice on behalf of their clients.