Blog Date: 
Friday, August 23, 2013
Anil Lewis
I received a copy of a memorandum written by Curt Decker, executive director of the National Disability Rights Network (NDRN).  The memo purported to be a rebuttal of an analysis of Title V, Section 511 of the Workforce Investment Act reauthorization, written by Professor Samuel R. Bagenstos, who was requested by the National Federation of the Blind to give his professional opinion of the reauthorization language.  Mr. Decker is unjustly critical of Professor Bagenstos’s findings.  Contrary to Mr. Decker’s assertion, in his report Professor Bagenstos does not ignore the positive components of the overall bill, nor does he ignore the fact that there are over 400,000 individuals with disabilities currently employed at wages far below the federal minimum.  Moreover, he does not ignore what Mr. Decker states is “the largest segment of people with disabilities that Section 511, in conjunction with other provisions of the bill, will ultimately help.” (Note Mr. Decker’s careful wording that includes “in conjunction with other provisions of the bill,” which confuses the matter of determining whether Section 511 is helpful or harmful on its own merit.) Professor Bagenstos properly considered the section in context and determined, overall, that the language would represent “a stunning step backwards.”
We appreciate NDRN’s continued support of the growing effort to repeal the unfair, discriminatory, and immoral subminimum-wage provision found in Section 14(c) of the Fair Labor Standards Act (FLSA).  We continue to point out that the subminimum-wage provision is the root of the problem and we, along with over fifty other national and local cross-disability organizations, believe that Section 14(c) of the FLSA should be repealed.  Moreover, we agree with NDRN’s assessment of the other forward-thinking provisions in the WIA language. However, we choose not to mask the detrimental consequences of Section 511 with the numerous other positive improvements listed in Mr. Decker’s memorandum.  
The mantra of the Decker memorandum is, “I choose to not let the perfect be the enemy of the good.”  As the executive director of the Protection and Advocacy System charged with the responsibility to zealously advocate on behalf of people with disabilities, it is truly disappointing that Mr. Decker is so passionate about defending a piece of legislation that he concedes is inadequate to address the real problem.  Some are afraid that our advocacy efforts to strike Section 511 from the bill will kill the WIA reauthorization. We cannot afford to be afraid.  We are not advocating for the perfect versus the good; we are advocating against the bad.  We seek only the most basic step toward the fair and just treatment of individuals with disabilities—payment of at least the federal minimum wage, in line with the protection provided to all other American workers.  The true enemy is the unfair, discriminatory, and immoral subminimum-wage provision found in Section 14(c) of the Fair Labor Standards Act (FLSA). 
Mr. Decker’s argument rests on the assumption that we must accept incremental progress toward the elimination of subminimum wages. We believe that such incremental progress is inappropriate, even as an interim goal. Furthermore, Professor Bagenstos’s analysis reveals that Section 511 will not make even the incremental progress that we are urged to accept. It will instead authorize subminimum-wage work as a training and work-readiness component of the rehabilitation system and, therefore, will ultimately, if unintentionally, lead to more rehabilitation clients being tracked into subminimum-wage work. Our response to Mr. Decker is that if he feels Section 511 is good, then good is simply not good enough. 
Those who advocate for the elimination of the wage disparity between men and women, or for the raising of the minimum wage itself, or for better services to assist the unemployed to re-enter the workforce, are not asked to, and would never accept the suggestion that they should accept only incremental progress toward their goals, or that they should accept solutions like commensurate wages or employment training in subminimum-wage environments as a step to achieving goals. It appears to only be problematic for people to advocate on behalf of fairness and wage equality when the advocates are people with disabilities.  The unfortunate reality is that we cannot align our efforts to obtain fairness in the workplace with those of the general public because society fails to understand that with the proper training, opportunity, and supports, individuals with disabilities can be productive workers.  Until we overcome this pervasive misconception, hundreds of thousands of individuals with disabilities will continue to be denied the proper training, opportunities, and supports to obtain competitive, integrated employment.  As long as society can legally relegate workers with disabilities to subminimum-wage employment, we will never change societal perceptions that such work is all that can be expected of workers with disabilities. 
The different standard to which advocates with disabilities are held has been apparent throughout the process of producing the WIA bill. We attempted to discuss our concerns with HELP Committee staff before the committee vote.  However, we were only able to secure a few meetings in the time provided.  In fact, members of the HELP Committee staff were discouraged from communicating with us.  We were assured that amendments to the Rehabilitation Act language would be offered during the committee markup, but no such amendments were offered or considered. Our attempts to engage in informed advocacy have been labeled a smear campaign.  Many of our members are requesting meetings with their Senators during the recess, but are being ignored.  How will good policy be developed without open, honest, informed dialogue?  
There is a false perception that there is tremendous support for Section 511.  That is because support for Section 511 is being wrongly conflated with support for the WIA bill in its entirety.  However, there is, to our knowledge, only one stakeholder entity that is opposed to the removal of Section 511 from the WIA reauthorization, and that entity is NDRN.  More to the point, the question is not who supports Section 511?  The question should be: who opposes the removal of Section 511? Again, the answer is only one entity: NDRN.
Section 511 is doubtless well-intentioned, but its proponents would do well to remember the famous proverb regarding good intentions being paving stones on a  particular, and undesirable, road. Section 511 cannot and does not accomplish its purported purpose and will actually make matters worse. We urge the Senate to remove it from the WIA reauthorization, and we urge all organizations of people with disabilities to affirmatively support its removal rather than silently accepting it. 
The below organizations all oppose Section 511 and support its removal from WIA:
Autistic Self-Advocacy Network
Autism Society of America
National Coalition of State Rehabilitation Councils
National Council on Disability
National Council of State Agencies for the Blind 
National Down Syndrome Congress 
National Down Syndrome Society 
National Federation of the Blind 
National Fragile X Foundation 
National Organization of Nurses with Disabilities 
Parent to Parent USA 
Physician-Parent Caregivers 
As of August 23, 2013