by Thomas E. Perez
From the Editor: Thomas Perez is assistant attorney general, Civil Rights Division in the United States Department of Justice. He addressed the third annual Jacobus tenBroek Disability Law Symposium on April 15, 2010. His remarks more often than not addressed disability issues unrelated to blindness and were wide-ranging, but the spirit of his sentiments was consistent with the legal scholarship that our founder, Jacobus tenBroek, undertook throughout his career. Here is what he said:
It’s an honor to be here at the tenBroek Symposium in the Kenneth Jernigan Center, an event and an institution named for two men who dedicated their lives to the service of civil rights. Professor tenBroek and Dr. Jernigan were not leaders of people who are blind–they were civil rights leaders, because their dedication to the rights of blind people had a profound impact, not only on the way blind people perceive themselves and the way those of us who are not blind perceive them, but their work helped us change the way we all perceive ourselves and our abilities and the way we think about disability. Professor tenBroek wrote extensively about the fundamental right of people with disabilities to live in the world. In one of his most memorable speeches Dr. Jernigan talked about blindness being a characteristic and not a handicap, a revolutionary concept at the time.
In our nation the phrase “civil rights” evokes powerful emotion, conjuring up visions of the 1960s, of Dr. King on the steps of the Lincoln Memorial, of hundreds of protestors on the Edmund Pettus Bridge, of students at lunch counters and university doors.
Sometimes forgotten when we talk about civil rights are the other movements, the other suppressed groups that have had to claw their way out from under the weight of immoral laws and misguided social morés. Women spent decades fighting for the right to vote, facing ridicule and sometimes imprisonment, before the Nineteenth Amendment passed in 1920. LGBT individuals have struggled for acceptance and battled wave after wave of misunderstanding and hate; they continue to make the case that they deserve the same rights as all people.
From our nation’s founding, individual people have fought for their rights, facing dozens of defeats for each victory. Progress has often been painfully incremental. But each victory, however small, was motivation enough to keep moving.
So it has been for individuals with disabilities in our nation, who faced every day the indignities of not being able to enter public buildings or get on a public bus; they were barred from attending schools and getting jobs. Until, that is, the passage of the Americans with Disabilities Act. The ADA literally opened millions of doors for individuals with disabilities across this nation. As the head of the Civil Rights Division, I have the distinct honor of leading enforcement of this critical law, which had implications no less important or far-reaching than the landmark civil rights laws of the 1960s.
In the two decades since its enactment, the ADA has revolutionized the way the rest of society thinks about individuals with disabilities, and it revolutionized the way that people with disabilities live in our communities. But that doesn’t mean the journey is complete.
In the Civil Rights Division every single day we still see barriers new and old facing individuals with disabilities that stand in the way of allowing all people to maximize the contribution they can make to society. But I can confidently report that the Civil Rights Division is once again open for business, and we are ready to take on the long-standing barriers and the new ones emerging. We are busy working on the new ADA regulations and expect to have them ready to be published very soon.
We know that modern technologies can pose significant challenges, and we must remain vigilant to ensure that new technologies don’t leave out individuals with disabilities. We acted swiftly on the complaints we received from the NFB about the use of the Amazon Kindle at universities, and we reached agreements with five major universities: Princeton, the University of Arizona, Pace, Case Western, and Reed College. Those institutions have agreed not to use inaccessible electronic readers, and we will continue to make sure other institutions nationwide are aware of their accessibility obligations.
I know this particular challenge is close to home for the NFB. Technology has revolutionized our economy and culture. It has made communicating and obtaining information, entertainment, education, and goods easier and more efficient. But many of these technologies, from Websites to cell phones, from ticket kiosks to TV set-top devices, are either in whole or in part inaccessible to blind people and other people with disabilities.
Though we have seen some voluntary efforts by companies once the matter is brought to their attention, far too many companies choose to forgo what I believe must be a profitable investment in making their products and services accessible to all consumers. We have a population that is aging, and making products accessible will only increase their customer base. The technology to make electronics accessible exists and is relatively affordable to implement.
Let me be clear. It is and has been the position of the Department of Justice since the late 1990s that Title III of the ADA applies to Websites. We intend to issue regulations under our Title III authority in this regard to help companies comply with their obligation to provide equal access. Companies that do not consider accessibility in their Website or product development will come to regret that decision because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up.
Meanwhile we are working to end the illegal but all too common practice of unnecessarily segregating people with disabilities in institutions. In 1999, with the Olmstead decision, the Supreme Court answered the question posed thirty-three years earlier by Dr. tenBroek in his article, “The Right to Live in the World.” He asked, “Are persons after all not to be persons if they are physically disabled? Are members of the community to be robbed of their rights to live in the community, their certificates cancelled upon development or discovery of disability?”
Olmsted established that Title II of the ADA requires that people with disabilities in institutional settings must be integrated in their communities when appropriate and that it is a violation of the law to segregate them unnecessarily from society. This was the Brown v. Board of Education [decision] of the Disability Rights Movement.
But, ten years after the landmark decision, tens of thousands of Americans with disabilities are still unnecessarily and unconstitutionally confined in institutions, some with unspeakably dangerous conditions. That’s why last year President Obama marked Olmstead’s tenth anniversary by proclaiming the Year of Community Living. Under his leadership we have made enforcing Olmstead a priority. Already, we have filed amicus briefs in several cases. We intervened in a case taking on the adult home system for people with psychiatric disabilities in the state of New York. In a case brought against the state of Georgia, we asked for an injunction to move persons with disabilities from institutions with horrific conditions into community settings.
Meanwhile, individuals with disabilities continue to face barriers to accessibility in nearly every aspect of life that many of us take for granted. The Civil Rights Division is active on all of these fronts, working to make sure the promise of the ADA is not an empty one. We are working to combat discrimination by public entities. In some cases the discrimination is overt--take, for example, our case against the city of Baltimore for mandating that substance abuse centers get special zoning permits when other entities don’t have to. In other cases cities and towns simply forgo their obligations to make their programs, services, and activities accessible to people with disabilities.
We continue to promote voluntary compliance in these cases through Project Civic Access, where cities and municipalities work cooperatively without litigation to reach compliance with Title II. The 176 agreements under the program to date deal with all aspects of civic life, including courthouses, health departments, libraries, parks, theaters and stadiums, sidewalks, and emergency shelters, as well as employment, voting, emergency preparedness, and effective communication—especially in law enforcement and 9-1-1 services. But, when jurisdictions will not cooperatively comply, we will not hesitate to file suit.
We recently settled a case against Jackson, Mississippi, for failing to make their public transit system accessible or make their paratransit systems fully compliant with their obligations under the ADA. The consent decree with Jackson mandates not only that buses include wheelchair lifts, but that bus drivers call out stops for passengers who are blind and that the paratransit allow reliable next-day service. This is particularly critical because it ensures that the plaintiffs in the case, teachers who are blind, have accessible transportation to their place of work, the Mississippi School for the Blind.
While we work to enhance accessibility in public programs and facilities nationwide, we must also address the continuing challenge of inaccessible housing. The Fair Housing Act and the ADA have specific accessibility mandates, yet far too many developers continue to ignore their obligations, either knowingly or out of ignorance of the law, to make their developments compliant with the Fair Housing Act and the ADA. On this front we have recently settled two matters—one in Iowa and the most recent in Tennessee.
In both cases we insisted that the developers not only fix their noncompliant properties, but also pay compensation to the disabled people who sought to live in the developments, and penalties to the United States. We also have an extensive outreach program to educate developers and architects about their obligations, and we will continue to bring cases when necessary to remind them that we take those obligations seriously.
In addition to access to housing and public services, access to hospitals is a critical need for everyone, including those with disabilities. The landmark health care reform legislation signed last month by President Obama will ensure that millions of disabled Americans can get the coverage they need but have too often been denied because of the preexisting-condition clauses in insurance policies. But as long as we have inaccessible hospital facilities or hospitals that do not use accessible medical equipment, many individuals with disabilities will continue to be unable to access critical care. This issue is a top priority for us, and we will soon be releasing guidance on accessible medical equipment.
Meanwhile, if we really want to address the abysmal unemployment rate for people with disabilities, we must ensure that children with disabilities not only have access to a free and appropriate public education as required by the IDEA, but also that they not be shut out from private schools and facilities. We are currently involved in a case against Nobel Learning Communities, which runs more than a hundred-eighty day care facilities, preschools, and elementary schools in fifteen states, but refuses to admit children with developmental disabilities and disenrolls children found to be on the autism spectrum.
Many of these challenges are longstanding and pervasive. For a long time people with disabilities were marginalized and discounted; others assumed they were incapable of contributing meaningfully to their communities. Those attitudes have shifted, but they have a way to go. As we work to combat the long-standing barriers, we must also tackle emerging challenges head on. In tight budget times like these, we must be persistent in our insistence that jurisdictions not allow themselves to move backwards because of declining revenues. The Civil Rights Division intervened in two cases in North Carolina over the issue of allowing individuals who have been placed in community settings to stay there. We will not allow people with disabilities to be a casualty of the difficult economy. While the case is pending, we successfully obtained a preliminary injunction that will keep the individuals whose lives are threatened by the budget cutbacks in their homes and communities.
Finally, we still face the challenge of attitudes and stereotypes that unfortunately exist throughout our society. When the Civil Rights Division has to enforce the right of a family with an HIV-positive child to enjoy recreational facilities because the owner tells them that their two-year-old child can’t swim in the swimming pool, as we did in a case in Alabama, we know we still have a long way to go.
When the Civil Rights Division has to bring a case against an attorney—of all people—who refuses to allow a woman with a service dog into his office, as we did in Colorado, we know we have a long way to go. When the Civil Rights Division has to fight for a deaf social worker’s right to be hired doing a job she is eminently qualified for because the government employer doesn’t want to accommodate her with a part-time interpreter, as we did in California, we know we have a long way to go.
We are approaching the twentieth anniversary of the ADA. Our nation has undeniably come a long way in those twenty years, and we are a better nation as a result. But our challenge in the twenty-first century is to make sure all Americans understand and appreciate, as Professor tenBroek argued, the fundamental right of people with disabilities to live in the world. We embrace that challenge and embrace the concept that he promoted, that “The policy of the law should be by negative ban and positive fostering to permit, enable, and encourage men to be a part of their communities to the full extent of their physical capacities.”
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