Gelding the Bull or Shoveling the Manure

Gelding the Bull or Shoveling the Manure

Lisa Mauldin

Gelding the Bull or Shoveling the Manure...It just Depends

on your Perspective

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>