by Samuel Bagenstos
From the Editor: Samuel Bagenstos is the principal deputy attorney general in the Civil Rights Division of the U.S. Department of Justice. He has argued before the Supreme Court for disability rights. Here is a slightly edited version of his remarks to the 2011 convention delivered on July 8, 2011:
It’s a real pleasure for me to be here. I bring to you the greetings of my boss, the assistant attorney general for civil rights, Tom Perez, who is incredibly committed to enforcing the civil rights of all Americans, including people with disabilities, and of the attorney general, Eric Holder, who has been an incredible supporter and partner of ours in our effort and an incredible leader of the department. It’s a personal pleasure to be here because, when I was a young disability rights lawyer, which was longer ago than I wish, I was doing a lot of work on disability rights cases. But I didn’t know a lot about the disability rights movement, so one of the sources I turned to that gave me intellectual sustenance and a sense of what the disability rights movement is in America, of course, was the writings of Professor tenBroek, the founder of this organization.
The NFB is an amazing organization. It’s the oldest. I went to college at the University of North Carolina. We liked to say that we were the oldest continually operating university in America. Certainly NFB is far and away the oldest continually operating organization of people with disabilities to assert their own rights--not to have their rights asserted for them by others. This is a model for the disability rights movement.
I know our time is limited, so let me move to the matter I’m here to talk about. In the Civil Rights Division of the Justice Department in the Obama Administration, we came in with a goal of improving our enforcement of all the civil rights laws. I think we’ve really stepped up our enforcement efforts in all areas. When the Obama Administration came to office, we found that the Civil Rights Division of the Justice Department had really been decimated. From 2002 to 2007, two thirds of our attorneys left. These were disproportionately the people who had the most experience litigating cases and the most experience enforcing civil rights laws. Not surprisingly our enforcement of all civil rights laws went down substantially. When the Obama Administration with Eric Holder, Tom Perez, and me came in, our goal was to improve our enforcement of all civil rights laws. In the disability rights area particularly, there was a lot of enforcement in some areas, but not a lot in others. The connections between the Civil Rights Division and the civil rights community had been significantly frayed. So, when people who were experiencing violations of their civil rights came to the Department of Justice, too often they found the door closed, and folks would say, “No, I’m sorry. We can’t help you here.” That was not because the career staff at the Civil Rights Division didn’t want to help, because they did. They were being held back.
When we came in, we resolved to restore and transform the division; to restore the traditional efforts to enforce civil rights laws vigorously; to make ourselves the most powerful and, in some ways, the most important and most feared civil rights law firm in America--though I don’t think we’ve quite caught up to Dan Goldstein, but we’re gaining ground on him. At the same time we decided to transform our work to reach out into the areas where we really hadn’t before. One of the central areas where we had not done significant work but needed to do so was accessible technology, ensuring that the technology that increasingly defines the lives of everybody in America is accessible to all people--to people with and without disabilities. That was something we took on as a major goal two plus years ago when the Obama administration took office. This is one of my personal priorities in the disability rights area. You guys all know why. I don’t have to tell you. Technology can be a real benefit in integrating people with disabilities in our society. It can be an education. In my normal life, when I’m not working in the Justice Department, I am a professor in education. When I have students who are blind, I know the way they have historically gotten their textbooks is that they wait a month to get the same textbooks everyone else gets because someone has to rip the pages out, scan them, and put them in an accessible format. Now we’ve tried increasingly to insure that professors provide accessible formats, but not all professors do so for the reasons you’ve just heard. They need to be educated.
For the first time technology can give us the opportunity for people with disabilities and people without disabilities to get the same text at the same time in all the same ways. Electronic books can provide the opportunity for true integration in education, but not if they’re not accessible. Guided by what we heard from the NFB, from the blind community, from Dan Goldstein and Dr. Maurer, we asked what areas could we take on in which technology was being used to exclude when it could so easily be used to include. The Kindle was the first major area in which we collaborated with the NFB, working to negotiate an agreement in the Arizona State University Case, in which Dan Goldstein was counsel and NFB was a plaintiff. We took complaints from you about a number of private colleges and universities that were using the Kindle pilot program, trying to establish the principle that advanced technology is terrific in education, but institutions can’t use it if it is not available to everybody, if it is not accessible to everybody.
As you know, we had not done much before that to enforce disability rights in the technological realm, so our efforts got attention. We then sent a joint letter, as Dan Goldstein told you, with the Department of Education to every college and university in America, underscoring the point that they have to take account of accessibility when using advanced technology. They have to use technology that is accessible to all. Dan has told you that he has come to us with complaints, and we are investigating complaints of our own. We know that the Kindle is just the beginning. We have to make it clear to every manufacturer of a product—and of course we don’t have jurisdiction over manufacturers, only over the people who use those products: schools, universities, retail service providers—but we have to make clear to the manufacturers that we will go after their market if their products are not accessible to everybody. That’s not a whim, not an arbitrary exercise of governmental power; that is the law. When you are a university providing education, it has to be full and equal education to everybody, to people with and without disabilities, to people who are blind and to people who aren’t. If universities or school districts fail to take account of those principles when they’re purchasing equipment or technology, we will hold the universities and school districts responsible. [Applause]
Technology is incredibly important in other areas of our work as well. I am a law professor in my real life and work with the Law School Admissions Council, which has a website that everybody who wants to apply to law school has to use; at least it makes life a lot easier. This website was not accessible. We worked with NFB, which was the plaintiff in the lawsuit against the LSAC and signed an agreement with them that by July 2012, the fall 2012 cycle, that website will be accessible. We also worked out an agreement with an individual law school, the John Marshall Law School in Atlanta, that, if it doesn’t become accessible, they can’t use this process anymore. We sent this message to every law school in America that, if your application process is inaccessible, we will go after you.
We’ve worked with NFB as well in a case involving a person who is seeking testing accommodations for the Maryland bar. As the folks in this room know, testing accommodations are an incredibly difficult, torturous process for all concerned. Particularly in professional examinations there is too little appreciation of the basic requirements of the ADA, that the point of professional licensing tests or any other test is to test your competence with the material: your ability to be a good lawyer, your ability to be a good physical therapist, your ability to be a good doctor--not to test whether you can read words on a page or using JAWS or whatever, but to test your competence with the material. That’s something we are going to continue to have to enforce.
A recent major settlement with Wells Fargo Bank involved many kinds of accessibility issues for people with many disabilities. Not only did we obtain sixteen million dollars in damages, which we can do under the ADA and private parties cannot, but we also got Wells Fargo to agree to make every single one of its ATMs accessible to people who are blind. I want you all to hear this about Wells Fargo. We had a claims process for the sixteen million dollars of compensatory damages—that’s money that doesn’t go to us but goes to people who have experienced discrimination by Wells Fargo. If you have experienced discrimination by Wells Fargo, you need to contact our claims process. If you go to <www.ada.gov>, very simple, you will find the Wells Fargo agreement very high on the page. You can submit a claim, and I would urge you to do that.
Last summer we issued our first comprehensive update of the ADA regulations since the original regulations implementing the ADA, and we issued what’s called advanced notice of proposed rulemaking, beginning a regulatory process that will insure that we have clear rules governing accessibility on the Internet for the first time. [Applause] We know that the Internet is now the way everyone in America shops, gets their educational services, gets their access to the community in many ways. When Internet sites are inaccessible, that denies people with disabilities full and equal access to the community, which is what they’re entitled to under the ADA. So we are continuing the regulatory process on that.
We received public comments on our advanced notice last year. We have digested those comments. We are working on developing the proposed regulations, which is the next step, and you should pay attention to our process, because we will be issuing proposed regulations sometime in the next months. I can’t tell you exactly when, but we’re working hard at getting that done. That will be a major issue. I know in the area of technology we have some work to do ourselves. We have to do more enforcement with respect to others, but I know the Department of Justice and the government of the United States have a lot of work to do ourselves. We know that Section 508, which requires government agencies to purchase and use accessible technology, is under-enforced, under-complied with. We have to do more, and I am ashamed that, when I have had Dan Goldstein and others in to talk about the inaccessible government websites, some of them come from the Department of Justice. Some of them come from the Civil Rights Division, and we are working hard to overcome those problems because we know we need to be a leader in this area, and we know that the federal government as a whole needs to be a leader. Technology is a central part of what we’re trying to do.
Let me talk about a few other things that may be of interest to folks in the NFB. We have stepped up our litigation in a number of areas. We have a very significant docket of cases involving people with service animals who have been discriminated against. Some of these cases are amazing. We litigated a case and entered into a significant settlement agreement in which an attorney refused a woman with a service dog admission to his office for a deposition. She was a party in the case. He was deposing her, and he said, “No, you can’t come into my office because you have a service dog and I have a nice new oriental rug.” This is someone who should know that it’s a violation of the ADA for him to say, “You can’t come in here.” We don’t usually bring cases against a small business, a single individual, but in a case like this, where the discrimination was so egregious by someone who really ought to have known better, we did obtain a significant monetary settlement against him. [Applause]
In a recent case in California a child wanted to go to school with a service dog, and the school said, “No. You can’t come to school with your service dog.” We litigated that and obtained a favorable ruling. In 2011 you would think they would know these basic principles.
There are hotels around the country that refuse to allow people to come with their service animals or require them to pay a pet deposit, as if a service animal were a pet. We have been enforcing requirements in restaurants to insure that people who use service animals can get in without discrimination. We have seen all kinds of discrimination continuing against people who are blind. It is shocking in this day and age that you would still hear stereotype-laden statements that you might have heard in the 70s: you have to see in order to do this job. We are enforcing these laws, and we’re enforcing them aggressively. I know we have much more to do, and mostly we need to hear from you.
One of the things that we have worked on very hard in this administration is to expand our connections to the civil rights community. I have personally met with a number of the people in this room. Tom Perez has met with a number of people in this room. Even the attorney general has met with a number of people in this room. But we know that we sit in Washington offices. We don’t know all the discrimination that’s going on. We can’t know because we don’t experience the discrimination that happens every day. We don’t use different kinds of websites that people may use and find discrimination and accessibility problems with them. We don’t go to all the stores and all the restaurants in the country. We need to hear from you. If you have a problem with discrimination, obviously this is an organization that is terrific in advocacy, but you should also reach out to the Department of Justice. That’s disability-based discrimination in anything. Disability-based discrimination from a government agency, from a store, from an employer comes to us. If we’re not the right place, we’ll make sure you get to the right place. But we need to hear from you because, as we move forward as a nation, we have to ensure that everybody, people with disabilities and without, people who are blind and people who aren’t, have the same access to all aspects of our civic, our cultural, and our economic life. Thank you very much.