by Lisa LaNell Mauldin
From the Editor: Lisa Mauldin is a Federationist who lives in Alabama. On April 6 she read an editorial in New York Newsday which annoyed her. She undertook a good deal of research before sitting down to respond. She first sent her article to the paper, inviting the editorial staff to use it as an op-ed piece, but to date New York Newsday has exhibited no interest in setting the record straight. Lisa then circulated her response to a number of listservs, and the Web site <EnableLink.com> posted it almost immediately. Here it is as it was posted:
One of the hottest topics inside the Beltway of our nation's capital these days is the digital divide. A techno-term created with the advent of the Internet, digital divide describes the ever-widening chasm that exists between the Internet access haves and have nots. As the debate becomes more heated, the access issue--like so many others--has fallen victim to the great legislation versus free-enterprise tug-of-war, which has colored our political palette from the beginning of time and shows no sign of dissipating any time soon. The firestorm surrounding this issue got a little hotter last week, however, as the anti-legislation army launched a major offensive through a newspaper article to which I would like to respond.
The article in question was entitled "Federal Gorilla Is Loose in Silicon Valley," which appeared in the April 6, 2000, edition of the New York Newsday, (notes 1 & 2) written by staff columnist James P. Pinkerton (note 3.)
Mr. Pinkerton begins by discussing the Microsoft verdict and its resulting proliferation of federal regulation (in his opinion) of computer and Internet companies. While this matter will no doubt be discussed for years in the hallowed, ivy-covered halls of business and law schools, as well as the mahogany-paneled board rooms of international conglomerates, I will move on to other issues, but not before I make one observation, the importance of which will become clear later. Mr. Pinkerton characterizes the federal government's activities both in the Microsoft matter and throughout the rest of Silicon Valley as "gratuitous meddling." In the meantime let's look at Mr. Pinkerton's position on federal legislation of Internet access for people with disabilities through Section 508 of the Rehabilitation Act.
Citing it as an issue that has the potential to "geld the bull market" (referring to the NASDAQ composite upon which most technology stocks are listed) Mr. Pinkerton opens his debate about Section 508 with these words: "Consider just one item: Section 508 of the federal Rehabilitation Act of 1973, as amended in 1998. It requires federal agencies to make sure that the electronic technology they use is equally accessible to employees with disabilities. In addition, it requires that members of the public with disabilities have equal access to public information."
Mr. Pinkerton goes on to add: "That sounds reasonable, but what about blind employees and computers--and the Internet? Or blind members of the public? How does one go about making the so-called graphical user interface accessible to those who can't see graphics?"
It would appear that Mr. Pinkerton might have pulled a Rip Van Winkle, for his question about how one goes about making the GUI accessible to people who are blind raises the inescapable inquiry, "Where has he been for the past twenty years?"
Mr. Pinkerton is asking a question that the disability technology community has already resoundingly answered. Blind people have been using screen-reading software to access not only the Internet but off-the-shelf e-mail, word processing, spread-sheet, and database software (just to name a few) for years now.
At this point the article takes a nasty turn as Mr. Pinkerton appeals to the destructive attitude of racism, employing the see-how-you-got-taken? strategy as he gives the reader his historical perspective on civil rights enforcement. "But history suggests that civil rights enforcement starts small, grows big, and then grows burdensome. That process usually begins with Washington setting model standards, then rippling them out across society."
Burdensome? Civil rights? To whom? ...only to those card-carrying members of the ruling class whose absolute power is somehow threatened by the equality of others? Color me enlightened.
The reader will be comforted to know that Mr. Pinkerton goes on to cite the creation of the Fair Employment Practices Commission during World War II and its use by the federal government as a springboard to bring about racial integration and anti-discrimination laws as his supporting argument for "burdensome."
Having dispensed his racial views, Mr. Pinkerton demonstrates that he is an equal opportunity discriminator, moving on to address people who are blind. "But it's one thing to argue that people of equal abilities ought to enjoy equal opportunity; it's quite another to argue that those who can't see must somehow be empowered to use an inherently visual medium."
Blind individuals are not asking to be "empowered" to drive or perform brain surgery, but rather that Internet Web site developers use the well-documented Web Content Accessibility Guidelines created by the Web Accessibility Initiative of the World Wide Web Consortium (W3C - note 4) in the design phase so that blind "individuals with equal abilities can enjoy equal opportunities"--guidelines, I might add, that would benefit non-disabled Internet users as well. Section 508 and other legislation does not mandate that a solution be created but rather that demonstrated models of success be used and supported.
Mr. Pinkerton would be shocked (apparently) to know that the Information Technology industry employs many blind people, who work in all facets of the business--even as Web-site developers. (You really should get out more, James.) In addition, the federal government is also a large employer of people with disabilities, including blind people. Is he now suggesting that blind employees are not entitled to the same access to information necessary to perform their jobs as their sighted counterparts?
Even more ironic to me is the fact that he could ask such a question in such a prominent daily publication. Unfortunately, this disturbing development is a clear indication of just how pervasive and politically correct discrimination against people with disabilities has become in our society. Have we really forgotten this tone so quickly? If Mr. Pinkerton were asking, "But it's one thing to argue that people of equal abilities ought to enjoy equal opportunity; it's quite another to argue that those who are African-American must somehow be empowered to use an inherently white medium," the expression of outrage--African-American and white alike--would be overwhelming, and I would question if his inflammatory rhetoric would even have been printed in such a mainstream publication as New York Newsday.
Finally we get down to the ultimate purpose for Mr. Pinkerton's article. (Pay close attention here. things are about to get political.) Mr. Pinkerton now quotes Walter Olson, senior fellow at the Manhattan Institute, who asserts that, if these standards are ever enforced, "hundreds of millions of Web pages would have to be torn down."
Walter Olson must be the foremost authority on the Internet and accessibility for people with disabilities, wouldn't you think? I mean, after all, based on the concise and authoritative statements made here, one gets the distinct impression that he would surely know best. I certainly did. So I went in search of answers.
Well, according to the Bio page on the Walter Olson Home Page (note 5), he is...are you sitting down?...an attorney. And not just an attorney, but an attorney with an agenda.
Investor's Business Daily called Olson "Perhaps America's leading authority on over-litigation" and the Washington Post dubbed Olson an "intellectual guru of tort reform." Olson has authored two books: The Litigation Explosion (reviewed favorably in the New York Times by the late Chief Justice Warren Burger) and The Excuse Factory, his book on litigation in the workplace, which has received rave reviews (A.B.A. Journal, "wittily scathing" and The American Spectator, "devastating and eloquent"). Do we detect a pattern yet? Hang on; it gets better.
Mr. Olson is the Senior Fellow for the Manhattan Institute (note 6) which describes itself as "a think tank whose mission is to develop and disseminate new ideas that foster greater economic choice and individual responsibility,"..."an important force in shaping American political culture." How, might you ask, is this lofty goal accomplished? In their own words (note 7) "We have cultivated a staff of senior fellows and writers who blend intellectual rigor, sound principles, and strong writing ability. Their provocative books, reviews, interviews, speeches, articles, and op-ed pieces have been the main vehicle for communicating our message."
Yes, it's true. Walter Olson is hardly an expert on Internet accessibility for people with disabilities, but rather he is an unashamed, "cultivated" mouthpiece for a conservative Manhattan think tank seeking to shape our government's public policy according to their own principles and standards. (Walks like a lobbyist, talks like a lobbyist...) I have no problem with that--that's the way our system works, but for Mr. Pinkerton to base a majority of his article on the propaganda of one individual representing a special interest group without clearly identifying his agenda is...well, I'll let you be the judge. It is true that Pinkerton mentions "Senior Fellow...conservative think tank Manhattan Institute," but this hardly constitutes full disclosure of the wide-ranging scope of Olson's underlying bias.
Finally, Mr. Pinkerton sinks to the lowest point in his article, resorting to the tactic of presenting examples of abuses (in his opinion) of the Americans with Disabilities Act that can only be described as extreme and isolated circumstances as widespread and commonplace. Again the writer returns to his favorite source--his only source--Walter Olson, since this same example has been used by Olson repeatedly to support his position against Internet legislation (note 8). Citing a February Miami Daily Business Review article (which is actually a December 21, 1999, article - note 9), Pinkerton "suggests" that ADA lawsuits have reached epidemic proportions and represent a real threat to life as we know it. (Oh brother!) Let's take a rational look at the situation in question.
The Review article opens with, "South Florida businesses big and small are under siege from a handful of litigious advocates for the disabled...." It goes on to say, "Plaintiffs, including a half-dozen non-profit corporations and associated individuals, have filed more than 600 federal suits in Miami, Fort Lauderdale, and West Palm Beach." Who are these plaintiffs?
Again from the Miami article, "Nearly all those cases, generally brought by a few disabled people acting as surrogates for others..." and "At the forefront of this legal assault is a six-lawyer Miami Beach law firm, Fuller Mallah & Associates. Since May, 1998, state records show Fuller Mallah helped form a trio of nonprofit companies in Broward, Miami-Dade, and Palm Beach counties respectively, the Alliance for ADA Compliance, Inc.; Advocates for the Disabled, Inc.; and the Boca Access Group. Today those nonprofits are plaintiffs in more than 300 ADA cases in South Florida. Advocates for the Disabled brought 276 of those cases." According to the article, "Advocates for the Disabled was originally incorporated by Ernst Rosenkrantz, seventy-two, of Miami Beach." The writer goes on to say of Rosenkrantz, "He is also a plaintiff in 323 cases, some in league with Advocates for Disabled. The Fuller Mallah law firm represents both Advocates for the Disabled and Rosenkrantz, a retired architect who has been confined to a wheelchair for fifty-three years." As it turns out, attorney John D. Mallah is Rosenkrantz's nephew.
Handful? Half dozen? A few disabled people? One six-lawyer law firm? A trio of non-profits? One seventy-two-year-old man and his nephew? Surely Olson and Pinkerton are not holding up this tightly-knit group--for all practical purposes to be considered as a single entity--as their proof of widespread over-litifgation? It is widely held that there are about fifty-four million people with disabilities in the United States, and they are suggesting that this one example of seemingly bad behavior on the part of less than twenty individuals constitutes an epidemic? Talk about scare tactics.
Using the high end of his figures ($20,000 per settlement) times even a ten fold exaggeration of 6,000 lawsuits, we have arrived at the grand total of $12 million. That wouldn't even pay one decent professional basketball player for a single year or a high-flying dot-com CEO (not including perks and benefits). For both Olson and Pinkerton even to hint that in the mind of every disabled person lies a lawsuit waiting to get out, as well as to raise the issue that maybe our society just can't afford accessibility, is irresponsible at best and outright deception at worst.
While everyone is examining the bottom line, let's consider what it costs to support people with disabilities using tax dollars. With estimates for the blind population of the U.S. around 1.1 million and their unemployment figures estimated to be about 74 percent, that leaves 814,000 blind and visually impaired individuals without jobs. Figure conservatively that only half of that number collect some kind of SSI or SSDI benefit and that that benefit includes a monthly check for $500 (again conservatively), the U.S. tax-paying citizen is shelling out $203.5 million per month in cash benefits (not including Medicare and Medicaid.) That's $203,500,000, and that is only for people who are blind, making no consideration for people with any other kind of disability. And Pinkerton says we can't afford the Americans with Disabilities Act?
Now that we have a pretty clear understanding of Olson's and Pinkerton's political affiliation, you may be more than a little surprised to learn that I, too, profess ultra-conservative political views, even going so far as to consider myself a civil libertarian, as do both of these gentlemen. Back in the beginning of this article, I told you that Mr. Pinkerton believed that the government's actions against Microsoft were unwarranted, and I have to confess that--at many levels--I too believe that to be true. I do not believe that the solution to every problem lies in federal legislation, and I too am a huge proponent of individual responsibility. However, unlike Mr. Olson and Mr. Pinkerton, I cannot afford to advocate for lofty ideals which are not practical in the real world. I guess it would be fair to say that what separates my civil libertarian views from theirs is the scope. I believe that civil liberties should be extended to include people with disabilities, while apparently they do not.
The purist civil libertarian viewpoint says that accessibility should be voluntary, leaving the market to find and implement appropriate solutions. This sounds good in a political debate or as the topic of rousing dinner party conversation among individuals who have never experienced firsthand the devastating effects of discrimination, but when all is said and done--unlike Olson and Pinkerton--I have to live my personal politics and principles day in and day out in a reality that bears little or no resemblance to theirs.
I am blind. I have been around the block enough times to know that in a market-driven society concerned almost exclusively with stock prices and shareholders, doing the right thing isn't always at the top of everyone's list. In fact, oftentimes it doesn't make the list at all. Had society in general been willing to do the right thing in the first place, the Americans with Disabilities Act--celebrating its tenth anniversary this year--would never have been necessary. The reality is that--like racial integration--Internet access to people with disabilities isn't going to happen by itself, and--like racial segregation--denial or delay of access has profound and nearly irrevocable consequences on the educational and economic opportunities available to people with disabilities.
Walter Olson recently testified before the Subcommittee on the Constitution of the House Judiciary Committee in a February 9, 2000, hearing on "The Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites" (note 10), where he argued that the government should not mandate that the Internet be made accessible to people with disabilities because in his opinion such action would limit or stifle that which may be enjoyed by other Internet consumers. In effect he was suggesting that it was okay to trample on the civil rights of one group in order to ensure that the privileges of another group would not be denied.
If you're older than thirty, this attitude should sound very familiar. It wasn't all that long ago that segregationists argued that integration of our public schools would infringe upon the quality of education for white children and that integration of the work place would take jobs away from white workers, thereby justifying the continued educational and economic oppression of African-Americans because to do otherwise just wasn't convenient for the white establishment. Have we as a nation forgotten this so quickly?
In closing let me say that reading Pinkerton's article reminded me of our old family home movies. Within the flash of a single frame the screen would switch from scenes of us sledding down the neighbor's steep front yard to building sand castles on the beach, from hunting for Easter eggs in our back yard to cutting the Thanksgiving turkey, from opening our Christmas presents to Mother's Day Sunday dinner. He jumped from disjointed subject to unrelated concept in the blink of an eye, and to follow his misguided logic from the Microsoft verdict to the Americans with Disabilities Act required some serious imagination.
In the end my greatest regret is that many who read Pinkerton's flight of fancy will take it as gospel, never fully understanding the load of manure they have been dealt, and ultimately, the only ones who will pay for Pinkerton's actions are people with disabilities, who only want a chance to pursue our share of the American Dream. Is that too much to ask? Apparently Mr. Pinkerton thinks so. (note 11)
(Author's Note: Every single Web site I referenced in researching this article--including the article itself--was fully accessible to me with no trouble whatsoever. I guess here are at least ten Web pages out of the "hundreds of millions" that won't have to be "torn down" in order to comply with emerging federal access legislation.
Special thanks to Gregg and Kelly for technical and editorial advice and insights without which this article would not have been possible. My e-mail address is <[email protected]>.
Note 1: Newsday "Federal Gorilla Loose in Silicon Valley" <http://www.newsday.com/coverage/current/columns/thursday/nd3840.htm>