Alan Ryan, Warden of New College, Oxford,  introduces President Maurer to the audience.

 Alan Ryan, Warden of New College, Oxford,
  introduces President Maurer to the audience.

Blindness, Quotas, and the Disadvantages of
Civil Rights

by Marc Maurer

     From the Editor: By invitation of the Equal Opportunity and Disabilities Committees at Oxford University, President Maurer delivered a university-wide address at the Examination Schools on February 16, 2000. The following day he delivered a similar address at Birmingham University. Friday evening, February 18, he addressed the London Branch of the National Federation of the Blind of the United Kingdom. Following is the address Dr. Maurer made at Oxford. Alan Ryan, Warden of New College, Oxford, and chairman of the Equal Opportunity Committee introduced President Maurer:

     In 1959 the humorist Tom Lehrer said that the army had carried the American democratic ideal to its ultimate. Not only did the army "prohibit discrimination on the grounds of race, creed, and color (Lehrer said) but also on the grounds of ability." Although this remark is taken out of context, it is suggestive of a rarely expressed opinion of today that nondiscrimination legislation is created out of a sense of misplaced idealism or guilt to provide artificial protection for the incompetent. If this opinion reflects reality, then nondiscrimination legislation will ultimately fail in its object. In a well-ordered society incompetence will not long be tolerated, and the law cannot create ability where none exists.

     I serve as President of the National Federation of the Blind, an organization which was formed in 1940 by a brilliant blind professor, Dr. Jacobus tenBroek, along with a handful of others. The Federation, which now consists of over seven hundred local chapters in almost every large city in the United States with a membership of well over fifty thousand, was founded on the principle that blindness is a characteristic rather than a devastating handicap. Blindness can be a tragic hell if it is not properly understood, but it need not be. Although some of the disadvantages associated with blindness are physical, most of them stem from mistaken attitudes about it. With proper training and the opportunity to use that training, the disadvantages of blindness can be reduced to the level of a physical nuisance.

     Blindness is widely regarded not only as a disability (which it clearly is) but also as a handicap--a fundamental disadvantage which affects all (or almost all) of the activities of living. However, the Federation believes it is a handicap only in those instances in which sight is demanded. Fewer tasks demand vision than is sometimes supposed. Nevertheless, the public perception persists that blindness renders a person unfit for most jobs, and this view of blindness is truly a handicap. The misunderstanding of blindness is not limited only to the sighted. Blind people, who are a part of the greater society, tend to accept the public perception, and this acceptance does much to reinforce the popular belief.

     Such high-sounding philosophical notions are undoubtedly heart-warming, but do they not contradict human experience? Although there have been a few notable exceptions, the blind throughout history have been primarily unemployed. If blind people can work, why have they been so persistently unemployed?

     In the sixty years since the National Federation of the Blind has come into being, this argument (in many different forms) has been presented repeatedly. In 1952 Dr. Kenneth Jernigan, a young blind man from an impoverished rural setting of the United States, who would later become a master builder of programs for the blind and President of the National Federation of the Blind, met Dr. tenBroek.

     Dr. Jernigan was at first intrigued and then captivated by the teachings of the blind professor. He set himself the task of demonstrating what could be done in programming for the blind if the emphasis were shifted from the disadvantages to the capabilities of blind students. Dr. Jernigan established training programs for the blind which encouraged development of physical and mental skills. Blind people were taught to jump rope, lift weights, practice judo moves, attack the punching bag, and do other physical activities. Included in the training were courses in traveling independently with a white cane, water-skiing, barbecuing over a hot fire, managing the daily activities in the kitchen, operating the equipment in a wood-working shop, and learning to communicate using both print and Braille.

     All of these elements of learning were important, but what held the program together and gave it life was a class in logic and the proper meaning attributable to blindness. Can a blind person be a chemist? Should blind people be expected to wash windows without leaving streaks or dirty spots? Can blind people effectively clear tables in a restaurant? These and hundreds of other questions were discussed, and they received favorable answers. Can a blind person observe people at a public beach to protect them against accidents in the water? If there is a practical way to accomplish this, we have not yet found it. Blindness, like every other characteristic, has its limitations, but they are often much overstated. The myth of inferiority is just as much a part of the culture for the blind as it is for other minority groups--in fact, until recently it has been one of the defining characteristics of blindness. However, our experience indicates that this myth is wrong.

     The teachings of Dr. tenBroek, carried into execution by the work of Dr. Jernigan, changed expectations among blind people and the sighted public about what was possible for this hitherto almost unrecognized minority. Blind people became electrical engineers, insurance executives, political figures, farmers, factory workers, teachers, and participants in dozens of other professions and activities. For the first time the ordinary blind person became productively employed at the ordinary trade or business in the ordinary setting alongside the ordinary sighted person. It was a demonstration of competence by a substantial number.

     These two outstanding thinkers and leaders, Drs. tenBroek and Jernigan, brought hope to a whole generation and created an unquenchable discontent. No longer were the blind prepared to accept other people's assessments of their limitations. No longer were they willing to tolerate the assertion that they might not become college graduates and that only a limited number of employment opportunities would ever be suitable for them. Blind people decided to demand equality--not all blind people, of course, but a sufficient number to command attention, and the results were immediate and striking.

     When the blind refused to have others speak for them and insisted on their fundamental right to speak for themselves, bitter, prolonged, intense conflict followed. In 1957 Dr. tenBroek could proclaim to the delegates gathered at the convention of the National Federation of the Blind that today we stand "an embattled organization. Our motives have been impugned; our purposes reviled; our integrity aspersed; our representative character denied." By 1973 Dr. Jernigan, speaking to the same organization, declared, "We will never go back to the ward status of second-class citizens. There is simply no way. There are blind people aplenty...who will take to the streets and fight with their bare hands if they must before they will let it happen. In our own time and in our own day we have found leaders...willing to go into battle to resist tyranny."

     Such are the words of Dr. Jernigan. What caused the confrontation? The blind declared that programs established to serve them could dominate their lives no longer. Some of the administrators of such programs hearing these pronouncements fought to retain the position of dominance they had formerly enjoyed. Furthermore, they resented any suggestion on the part of the blind that the system they had devised was other than ideal for the group they regarded as their wards. The two positions are irreconcilable, yet there are those who have said to the organized blind that we should all get together because we are all working for the same thing.

     When the National Federation of the Blind was formed in 1940, the unemployment rate for blind people was almost one hundred percent. In 1920, after the close of World War I, Congress had established a program of rehabilitation for the disabled, directed primarily toward returning veterans. However, the blind were not included because it was thought that blind people could not be rehabilitated. By 1958 estimates of the employment rate for the blind indicated that three percent of blind people of employable age had jobs. By the mid 1970's the rate of employment for the blind had risen to thirty percent.

     In the mid 1960's Dr. tenBroek reviewed the state of the law for the disabled in an article entitled "The Right to Live in the World: The Disabled and the Law of Torts." Stimulated by his research, Dr. tenBroek drafted a model White Cane Law which declares that the blind have a right to be on the streets, highways, and walkways and in public buildings and facilities.

     Today it seems odd that there could ever have been a need for such a law, but overt discrimination against the blind had occurred fairly frequently before the statute was drafted. Furthermore, some judicial decisions had prevented the blind from receiving compensatory damages for injury on the grounds that the injured individuals had not been carrying a white cane and were thus guilty of contributory negligence. The White Cane Law declares that the failure of a blind person to carry a white cane is not evidence of contributory negligence.

     In 1973 the Rehabilitation Act was amended to include nondiscrimination provisions. Those receiving federal financial assistance were prohibited from discriminating against the disabled. This broadened dramatically the statutory protection for the blind and the otherwise disabled. In 1990 the Americans with Disabilities Act was signed into law. This applied nondiscrimination provisions to most businesses. Within less than a quarter century civil rights legislation for the disabled became the established policy of the United States.

     One of the concepts of this legislation is reasonable accommodation. If a modification of the work site or the tasks of a particular job will make it possible for a disabled person to do the work and if the disabled applicant is the most qualified for the job, the modification must be made. The limitations on such accommodations are that they may not be so costly as to be unduly burdensome to the employer, and they may not be so extensive that they change the nature of the job.

     How have these principles been interpreted? In many cases the modifications are slight, and there is little question that they are reasonable. A blind person attending a meeting may take notes in Braille and transcribe them later for distribution to others. Blind employees may use readers to study the material that comes to them rather than reading it in print. However, the use of readers has not been without controversy. Until the early 1990's the United States Department of State prohibited blind people from applying for jobs as foreign service officers because, they said, foreign service officers must read secret documents, and there is no way for a blind foreign service officer to use a reading machine or a live reader to perform this essential function within the requirements of security. Of course, senior personnel in other departments of government had been reading classified documents with readers or reading machines for years without violating security, but this argument failed to impress officials at the State Department.

     The action that changed their minds was a Congressional hearing directed at preventing the State Department from receiving a budget appropriation unless it adopted policies in accordance with the law. Despite the long-established practice of permitting the blind to use readers to get information, the State Department did not regard the use of such readers as reasonable. It has now been permitting such practices for a decade, apparently with no ill effect.

     However, there have been other instances in which the reasonableness of a requested accommodation can be seriously questioned. In 1982 a blind man named Harold Carter, working for the United States Department of Education, sued his employer for failing to provide him with reasonable accommodation. He was serving as a Congressional liaison officer, who was expected to write letters in response to congressional inquiries. The standard of the department was that twelve letters should be written by each officer each week. In order to accommodate Mr. Carter, the output requirement for him had been dropped to six letters per week--fifty percent of the standard applied to the rest of the employees. In addition, Carter was offered a reader to assist him.

     Nevertheless, he still did not get the work done, and he blamed his failure on the Department of Education because he said that these accommodations were inadequate. What he needed, he said, was to have every single document that he might ever need to review put into Braille. Because the library of material available for research was moderately sizable, this request was completely impractical.

     During the course of the trial Carter testified that, even if he were provided with a full-time reader and expensive equipment (which in his estimation would cost sixty-five to seventy thousand dollars), he still could not be as efficient as a sighted person in performing the duties expected of him. Carter's unbelievable testimony contains the following brief passage: "There is no way you can interpret subtle thoughts to a reader who is doing research. To delve seemingly with no direction into files to get information--I don't know how you could do it unless you can see enough to do it yourself." Such is the testimony of Harold Carter, and one wonders if he can really believe it. I myself, totally blind now for more than thirty years, have conducted legal research, and many thousands of other blind people have competently used readers to gain information, both subtle and otherwise.

     The Department of Education prevailed; the justices declared that Carter's claims that additional accommodations should have been made were unreasonable. However, nobody in the case, not Carter, not Carter's supervisor, not the Secretary of Education, not the many lawyers involved, not the justices in the Court of Appeals--nobody challenged the determination that fifty percent performance is all that can be expected from a blind employee. If this is the result that comes from adopting nondiscrimination legislation, it were better that it had never been written. One of the premier judicial tribunals of the United States has tacitly accepted an argument offered by one of the major departments of our government that the blind are necessarily inferior to the sighted in employment--and it was done with the assistance (one might say with the complicity) of a blind person. He believed himself to be inferior, and he argued that this is the condition of us all.

     At the same time that the Harold Carter case was being filed, one of the administrators of programming for the blind in the United States, the executive director of a workshop for the blind in Minnesota, declared that equality for the blind was a false hope. "If the blind are equal to the sighted," he expostulated, "here, let them take my car keys and drive me to work." This man thought that the way a thing is done is more important than the final outcome.

      I might have told him of a blind man of my acquaintance who was having trouble getting taxis to come to his door. He established a transportation business of his own. He no longer has trouble finding a way to get from place to place. As president of the company, he can assign his drivers to be where he wants at times that please his convenience. When they are not driving for him, they transport paying customers, and the whole arrangement helps to put money into his pocket. This blind man would be quite capable of driving the sighted administrator to work.

     The Americans with Disabilities Act, adopted in 1990, is the most comprehensive law prohibiting discrimination against the disabled. However, there are those who say that it has diminished rather than enhanced opportunity. A report appearing a year ago in the St. Petersburg Times indicates that the Harris Company surveyed employment statistics for the disabled. Unemployment had risen between 1986 and 1998 from sixty-six to seventy-one percent. The same report indicates that a member of the U.S. Civil Rights Commission, Russell Redenbaugh, who is himself totally blind, speculates that the fear of lawsuits has prevented the most severely disabled from being employed. Mr. Redenbaugh believes (according to this report) that the interpretation of the ADA has been twisted to such an extent that the inability to perform a job may be cited as an indication that an employee is disabled and entitled to protection under the law.

     Are employees expected to be at work on time? Not if they have a disability which would make this difficult, says the report. Is dismissal from employment permissible for sleeping on the job? Not if the disability is narcolepsy. Accommodations being demanded under the ADA attack the notion that employees should come to work on time, stay awake, and get the job done. If it takes longer for a disabled person to do the same job performed by an able-bodied employee, some people argue that the employer should be prepared to accept a lesser amount of productive work. At one time the slogan in the labor market was equal pay for equal work. There are those who argue that the slogan of disability rights is equal pay even without equal work.

     It is a short step from the concept that inferior performance must be accepted by an employer to the notion that all employers should have disabled employees on the payroll--that employment is a right for those with disabilities. Such a concept involves shifting the burden of providing a livelihood for the disabled from charitable entities or government to the employment community. An equitable distribution of this burden would involve placing the disabled with employers in accordance with the size of the complement of their workers. If the benefit of employing disabled workers is not as great as that which comes from employing the non-disabled, this is simply one more cost of doing business, goes the argument.

     The Americans with Disabilities Act began with the proposition that the law should require equality of opportunity. However, there are those who believe it should require equality of result. The disabled (they say) have been victimized by lack of understanding and discriminatory behavior; they are entitled to employment. Logic suggests that the long-term impact of this argument can only be destructive.

     One of the members of the National Federation of the Blind is Dr. Frederic K. Schroeder, a blind person who serves as the Commissioner of the Rehabilitation Services Administration, the federal agency responsible for rehabilitation programs. Dr. Schroeder has an annual budget of something like three billion dollars.

     When Dr. Schroeder was young, he hoped that he could find a way to do something productive, but he had no training in the skills of blindness, and his parents did not have enough experience to know what a blind boy might be able to achieve. Dr. Schroeder pondered the options available to him, and he concluded that there was only one profession that he could undertake--he decided to become a radio disc jockey because he was a good talker, and everybody knows that all disc jockeys do is talk on the radio and play records. Then he became acquainted with the National Federation of the Blind, and he discovered that there are many other alternatives.

     Dr. Schroeder became a teacher and an administrator of public programs of education, but he was still affected by his beliefs about blindness. With the acquisition of the new job, Dr. Schroeder had the money to buy a house. He faced the problem of how to get the lawn mowed. He thought he might hire somebody to do it, but (he reasoned) if he asked a sighted person to mow his lawn, the neighbors would believe he was not able to do it himself because he was blind. This would reinforce their assessment of him as inferior. However, he was also afraid to mow the lawn himself because the neighbors might watch him do it, and if he missed a patch of grass, they would conclude that he was incompetent. He could, of course, cover the lawn in such a way that he would not miss any grass--going over it repeatedly in narrow strips--but this too would look unusual and peculiar to the neighbors.

     Dr. Schroeder did not want to look peculiar. He decided that the best solution was for him to mow his lawn when the neighbors were not likely to observe. He decided to cut the grass at night. I cannot say how the neighbors reacted to this plan. However, if the objective is to seem normal, I doubt that mowing the lawn at night is the best way to accomplish this purpose.

     The efforts of Dr. Fred Schroeder to avoid looking conspicuous and to appear normal remind me of my own embarrassing experiences. How great a premium there is on seeming normal!

     When I was in high school, I also wanted to find something productive to do. I wondered what my life might become. I had read books describing high adventure, big business, and politics, but I was convinced that my blindness would prevent me from engaging in these activities. Nevertheless, I hoped. I wondered if I might be fortunate enough to attend college, but I knew of no way to do it. I had met only one other blind person, a man who sat in front of a specialty shop and sold pencils. I did not want to be like him. I had delivered newspapers and mowed lawns and shoveled snow and put shingles on the roof of a garage, but I knew of nobody who made a living doing these things. I had heard of blind people who built cabinetry and sold it. I decided this was the profession for me.

     Then I came in contact with the National Federation of the Blind, and my perspective changed. Dr. Kenneth Jernigan, who was then serving as its President, told me not to be so limited in my thinking; and he helped me get the money to attend the University of Notre Dame.

     When we were young, Dr. Schroeder and I did not have sufficient knowledge or experience about blindness to know what might be possible for us. We had heard other people talk about the limitations of blindness, and we accepted their assessment--making those limitations real. We needed the help of others to give us background and perspective. Nevertheless, even with our limited information, we knew more about blindness from personal experience than most of the public. Is it any wonder that there is misunderstanding?

     Is it better for a disadvantaged minority (such as the blind) to have an established law to protect them from the larger society, or is it better for that group and for society as a whole if no law exists? This depends upon the nature of the law, the way it is interpreted, the behavior of the protected minority, and the behavior of society as a whole.

     If a society decides to discriminate unreasonably, it loses the talents of the affected group. The group singled out for specialized treatment cannot achieve its potential, and the overall capacity of the society is diminished. If the blind are capable, it is in society's best interest to employ that capability. If doing so requires a law, it is well to adopt one.

     However, the power of law is restricted; it may set limits on behavior, but it cannot create understanding. The members of society interacting with the minority group must do that. The institution of a law may inhibit this process by establishing a set of requirements which are minimum guidelines. Employers and others may say that they have met the requirements of the law, and they may not be willing to consider anything else.

     The natural laws of physics say that for every action there is an equal and opposite reaction. They also tell us that matter cannot be created from nothing. These principles are just as true in social affairs as they are in the physics laboratory. If the disabled demand equal treatment without providing equal service, there will be a shortfall in the equation, and somebody will pay. I fear that the payment will be exacted in the social acceptance of those with disabilities. If only fifty percent performance is required, true acceptance of those who offer it is unlikely. Promotions will not come easily to this group, and even when there is outstanding performance, recognition of it will be inhibited because the inherent expectations will be of only minimal performance. Because the employer will expect less of the disabled than is required of others, this group will always be regarded as inferior. The tragedy is that, if this standard is once put in place, many disabled people will come to believe that it is fair and reasonable.

     The whole structure of rules and regulations is suggestive of conflict in which fear, confrontation, and reprisal are part of the norm. Confrontation and fear are corrosive. If society permits these attributes of life to become extensive, they will undermine the foundation of our civilization. However, all groups that have achieved first-class status within society have passed through a period of hostility. Even the barons of England confronted King John demanding that a law be established. The law was written during a period of conflict.

     However, as essential as conflict may be, it cannot solve all problems. There must be a time of consolidation beyond confrontation. If the blind and the otherwise disabled insist that nondiscrimination laws be interpreted to provide equality of opportunity and that the only acceptable interpretation of them is that equal work be a prerequisite for equal pay, our society may achieve a measure of understanding that extends beyond the law.

     When is it reasonable to demand that civil rights legislation be adopted? When should a group be willing to suffer the disadvantages that come with conflict, confrontation, and the imposition of legal force? Whenever conditions for that group have become intolerable and there appears to be no alternative. The adoption of legislation to protect the interests of a minority implies that many in society are not willing to offer that group equal treatment without the requirements of law. However, it also implies that the minority has the political muscle to make itself heard. It is doubtless unnecessary to observe that those with political muscle get more respect than those without it.

     The law is a tool; it has the capacity to get attention. However, we must resist the seductive temptation to believe that the law alone is adequate to protect our interests--it is not. We must think beyond law and express our dreams in terms of social acceptance rather than force. The law can help us get a job, but it cannot make employers want to use our talents. It can give us the right to enter a public place or participate in a public program, but it cannot induce our neighbors to want to have us there. It can express our wish for equality, but it cannot make us equal--we must do that for ourselves.

     We who are blind can dream of a time when we will not be talking of the battles, the demands, or the requirements of law. We are blind, but we are not inferior to others, and we have every confidence that our sighted neighbors will join us and accept us for the capable people we are.

(r)