Braille Monitor                                                 August/September 2007

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A Declaration of Equality

by Fredric K. Schroeder

From the Editor: On Thursday, July 5, 2007, NFB First Vice President, Past Commissioner of the U. S. Rehabilitation Services Administration, and Research Professor at San Diego State University Dr. Fred Schroeder addressed the Convention. This is what he said:

Fred SchroederOn July 4, 1776, the Continental Congress of the thirteen United States of America unanimously declared independence from the British Empire, severing ties between the colonies and the Crown. Today the Declaration of Independence is the nation's most cherished symbol of liberty. Every school child in America is familiar with the Declaration of Independence and the words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Once independence had been declared, the new nation needed to agree on a constitution that would give structure to the principles articulated in the Declaration of Independence, "in Order to form a more perfect Union," that would offer the protection of a centralized government and, at the same time, would safeguard individual freedom. Yet freedom was not for everyone. The Constitution included several provisions that explicitly recognized and protected slavery. Of course the framers of the Constitution knew that the equality of all men was the foundational premise of the Declaration of Independence, but it was understood that it had not been intended to grant rights or equal status to slaves and other so-called inferior people.

This is why, nearly a century later, on November 19, 1863, President Abraham Lincoln invoked the Declaration of Independence, not the Constitution, at the dedication of the military cemetery at Gettysburg, Pennsylvania. His words are familiar to us all:

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal." Powerful, inspiring words, but Lincoln's words did far more than honor the dead and memorialize their sacrifice; by invoking the Declaration of Independence, he challenged the Constitution's protection of slavery. He placed morality above the Constitution; he claimed the authority of a higher law, the law of right and wrong, to denounce the oppression of one race of people by another.

In the early 1970s the courts ruled that the right of blind children and other children with disabilities to be educated is guaranteed under the equal protection clause of the Fourteenth Amendment to the Constitution. As a result, in 1975 Congress adopted Public Law 94-142, assuring a “free appropriate public education” for children with disabilities across the country. 1 But what does that mean? What is an appropriate education for a blind child? The legal standard has two parts: a program is considered appropriate if the school district has observed all procedural requirements in developing the child's Individualized Education Program (IEP) and if the district's IEP is "reasonably calculated to confer educational benefit." 2 Said more plainly, blind children and others with disabilities are not entitled to the best education or to an education that will maximize their potential or, for that matter, even to a good education. They are only entitled to an education that is "sufficient to confer some educational benefit upon the handicapped child."

The Constitution guarantees blind children the right to an education, but not necessarily to an equal education. As in earlier times the Constitution has been interpreted to apportion equality in different measures to different classes of people. For blind children the courts have said that they only have the right to an education that is sufficient to confer some level of benefit. That is the law. Yet in 1863 President Lincoln placed the Declaration of Independence and its "proposition that all men are created equal" above the law--above the Constitution--and so must we. We must declare our equality and place it above public opinion and the laws and interpretation of laws that flow from stereotype and prejudice.

It is estimated that as many as 80 percent of all blind people are unemployed: eight out of ten blind people--an entire class of people oppressed by virtue of a single defining characteristic. What can be done to change this condition? The link between literacy and employment is well known and well documented. So what is the literacy rate among the blind? Of the estimated 55,200 legally blind children in America, only 5,500 use Braille as their primary reading medium—fewer than 10 percent. 3 But does this mean that the other 90 percent are illiterate? Haven't advances in low-vision technology offered access to print to more and more low-vision children, making Braille unnecessary? Aren't most low-vision children doing well using print--going on to college, pursuing challenging careers? Don't print readers end up doing better than Braille readers? The short answer is no.

While only 10 percent of blind people read Braille, as many as 90 percent of employed blind people are Braille readers. 4 In a landmark study by Dr. Ruby Ryles, she found that children who grew up reading Braille had a 44 percent unemployment rate as adults compared to a 77 percent unemployment rate among low-vision children reading print. 5 That means that while four out of ten early Braille readers will still find themselves unemployed as adults, nearly eight out of ten low-vision print readers will face unemployment. Said another way, Braille readers are nearly twice as likely to find work as the general population of blind adults, while low-vision print readers have essentially the same unemployment rate as the general population of blind people.

But only 10 percent of blind children are taught to read and write Braille. Why? If Braille offers literacy and literacy doubles a blind person's chance of becoming employed, why aren't more blind children--the majority of blind children--being taught Braille? Some of the reasons are practical in nature. There is a shortage of trained teachers. Many teachers of blind children have so many students assigned to them they can only spend a few minutes a week with each child. Many teachers did not learn Braille well in college, and very, very few know the technical codes, and the list goes on and on. So what have we done, and more to the point, what should we do from here?

In 1997 we succeeded in amending the Individuals with Disabilities Education Act to include a presumption of Braille for all blind children. 6 Nevertheless, in spite of the clear requirement that blind children receive Braille instruction, the U. S. Department of Education has taken the position that the amendment made no change, since blind and visually impaired children already receive assessments to determine the most appropriate reading medium. 7 With this logic the Department totally dismisses the statutory presumption of Braille for blind children and goes on to take the position that, when a parent disagrees with the IEP team, the district may continue to provide instruction in print while the parent and child wait for years as the formal appeal process drags on. 8

Why would the Department of Education take such a position? Why would the Department side with the local district, allowing print to be taught instead of Braille, knowing that the district has a vested interest in providing print instruction? If a child needs Braille, the district has to find a trained teacher, has to make the teacher available several hours each week, has to make provisions to acquire and produce materials in Braille, and will be pressed to buy expensive Braille technology. If the child has any sight at all, print is the easier, the cheaper, the less complicated option. It is also the option that has the greater risk of leaving the child illiterate and unemployed, and this is not just hyperbole.

Without the opportunity to become literate, blind children will face a lifetime of poverty--real poverty. A blind person receiving Supplemental Security Income from the federal government must survive on $623 a month and may not accumulate more than $2,000 in total assets to remain eligible for benefits, although the law does allow a blind person to put aside some money in a designated "burial account."

So there you have it. According to the courts, according to the U. S. Department of Education, blind children have no right to literacy, only the right to receive instruction "sufficient to confer some educational benefit." In place of equality, a check from the federal government--$623 a month, provided you do not accumulate more than $2,000 in assets (not usually a problem), and when you die, no money to help with burial expenses, unless during your lifetime you had found a way to put some money aside from your government check.

When the thirteen colonies declared independence from England, they asserted that "all men are created equal." Yet when the Constitution was ratified, equality was reserved to white men only. But the law was wrong. And the court's interpretation that a blind child's right to an education is limited to instruction "sufficient to confer some educational benefit" is wrong. Equality is a fundamental right; it cannot be parceled out according to society's view of the relative worth of a class of people, be it based on race or blindness. We must declare our equality and the right to learn and work and live a full, productive life; and that means we must have access to Braille, not just for 10 percent of us, not just if the school district finds it easy or convenient, but for all blind children. The stakes are too high and the consequences too great to do anything less.

We must begin by helping parents learn to believe that true literacy is possible for their children and that Braille is the best way to insure the development of good reading and writing skills. We must make parents aware that there is no downside in teaching their children Braille at a young age but that there is a serious risk in waiting until the child is having trouble keeping up in school. We must make parents aware that Braille readers routinely achieve reading speeds comparable to those of sighted children reading print and with no fear of eye fatigue. We must press local school districts to hire trained teachers to provide blind children with a good education. We must press for high standards to insure that teachers of blind children are well trained and well prepared and know Braille, including Braille music and the technical codes. We must make sure that blind children have the tools and resources to support the development of literacy. They must have materials in Braille, including technical materials. They must have access to electronic notetakers, and not just with speech output, but with Braille displays. And above all we must bring blind children and their parents into the National Federation of the Blind. We must offer them our collective experience, our collective encouragement and support, and our belief in the ability of blind children to pursue their individual dreams. We must make them a part of our collective declaration of equality--a declaration rooted in the proposition that all men are created equal, including blind people; the declaration of our equality that has sustained our resolve, hardened our sense of purpose, and guided our efforts for nearly seventy years and that will carry us into the future.

Endnotes

1. The right of every child with a disability to be educated is grounded in the equal protection clause of the Fourteenth Amendment to the United States Constitution. Two federal court decisions are commonly cited as having inspired the Education for All Handicapped Children Act. They are the Pennsylvania Association for Retarded Citizens v. Commonwealth (1971) and Mills v. Board of Education of the District of Columbia (1972).

2. Hendrick Hudson School District Board of Education vs. Rowley, 458 U. S. 176; 192 S. Ct. 3034; 73 L. Ed. 2d 690 (1982) was the first special education case heard by the U. S. Supreme Court. The Rowley Court said, “The statutory definition of `free appropriate public education,’ in addition to requiring that states provide each child with `specially designed instruction,’ expressly requires the provision of `such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education.’ We therefore conclude that the `basic floor of opportunity’ provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.”

3. In 1998-99 approximately 55,200 legally blind children lived in the United States. Of these, approximately 5,500 used Braille as their primary reading medium. American Printing House for the Blind (APH), 1999. APH maintains an annual register of legally blind people in educational settings below the college level.

4. While estimates vary, somewhere between 80 and 93 percent of employed blind people report using Braille on the job. According to the Louis Braille Bicentennial–Braille Literacy Commemorative Coin Act, P.L. 109-257 (109th Congress), “Braille literacy aids the blind in taking responsible and self-sufficient roles in society, such as employment: while 70 percent of the blind are unemployed, 85 percent of the employed blind are Braille-literate.”

5. Ryles conducted a preliminary study in the state of Washington evaluating the correlation between adult literacy skills and employment. There she studied seventy-four adults who were born legally blind and were patrons of the Library for the Blind. Ryles discovered that 44 percent of the study participants who had learned to read in Braille were unemployed, while those who had learned to read using print had a 77 percent unemployment rate. Those results prompted her to conduct an in-depth study exploring the childhood reading education of legally blind high school students. Research Study: Early Braille Education Vital, (Ryles, R.) Future Reflections, Special Issue, 2004.

6. In 1997 the Individuals with Disabilities Education Act was amended making Braille the presumed reading medium for legally blind children. Specially, the law stated, "(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;..." 20 U.S.C. 1414(d)(3)(B)(iii)

7. Specially, with regard to the 1997 IDEA statutory provision creating a presumption of Braille, Attachment 2, Summary of Potential Benefits and Costs, to the 1999 Final Regulations implementing the ’97 Amendments states:

Clarifying that the team must consider a number of special factors to the extent they are applicable to the individual child. The statutory changes that are incorporated in Sec. 300.346 do not impose a new burden on school districts because the factors that are listed should have been considered, as appropriate, under the IDEA before the enactment of IDEA Amendments of 1997. These include: behavioral interventions for a child whose behavior impedes learning, language needs for a child with limited English proficiency, Braille for a blind or visually impaired child, the communication needs of the child, and the child's need for assistive technology. Federal Register, Vol. 64, No. 48, p. 12657 (March 12, 1999).

Additionally, Attachment 1, Analysis of Comments and Changes, to the 1999 Final Regulations states:
It should be emphasized that, under prior law, IEP teams were required to consider these special factors in situations where such consideration was necessary to ensure the provision of FAPE [Free Appropriate Public Education] to a particular child with a disability. Therefore this new statutory provision makes explicit what was inherent in each child's entitlement to FAPE under prior law. Federal Register, Vol. 64, No. 48, p. 12588 (March 12, 1999).

And:

Contrary to a suggestion of commenters, a regulatory provision making it mandatory for Braille to be taught to every child who is legally blind would contravene the individually oriented focus of the Act as well as the statutory requirement that the IEP team must make individual determinations for each child who is blind or visually impaired based on relevant evaluation data. Federal Register, Vol. 64, 48, p. 12589 (March 12, 1999).

Thus, in its analysis of the statutory changes, the Department of Education essentially negates the creation of a presumption.

8. Specifically, Attachment 1, Analysis of Comments and Changes, to the 1999 Final Regulations implementing the ’97 Amendments states:

If there is disagreement between the parents and school district over what constitutes an appropriate program for a child who is blind or visually impaired, when the IEP team has determined that instruction in Braille would not be appropriate for the child, the parents of the child would have the right to request a due process hearing and mediation. In addition, parents have available to them mediation and complaint resolution by which they can file a complaint with the SEA under the State complaint procedures in these regulations.
Although the LEA would not be required to provide instruction in Braille while the dispute is being resolved, the LEA would be required, both by Part B and Section 504, to ensure that the child receives instructional materials in an alternative medium to enable the child to participate in the LEA's program. Federal Register, Vol. 64, No. 48, p. 12590 (March 12, 1999).

This interpretation is more onerous, given the decision in Schaffer v. Weast, 546 U.S. (2005). On November 14, 2005, the U. S. Supreme Court handed down its decision in Schaffer v. Weast, a lawsuit to determine the burden of proof in special education cases challenging a student's Individualized Education Program. The Court held that the party seeking relief, whether it is the student and/or family or the school district, has the burden of proof.

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