by Marc Maurer
From the Editor: Where must the blind turn for justice? Sometimes we go to the legislatures in our states, sometimes to the United States Congress, but ultimately we must turn to the courts to interpret the statutes that are enacted and to reconcile them with rights we believe to be found in the Constitution. In the remarks that follow, President Maurer discusses the record of the Supreme Court in interpreting the law as it pertains to blind and otherwise disabled Americans. Here is what he said at the Jacobus tenBroek Law Symposium held on April 14 and 15, 2011:
Although the Fourteenth Amendment to the Constitution of the United States declares that “no state shall … deny to any person within its jurisdiction the equal protection of the laws,”1 and although section five of the amendment declares that Congress has the power to enforce it by appropriate legislation, what equality before the law means has been the subject of debate from the time of the beginning of our nation, and it remains a matter for interpretation by the courts. In considering “equality before the law” for disabled individuals, it is worth pondering whether the courts have been a help or a hindrance. If they have not been a help, it is worth considering what steps are required to change the judicial point of view.
In 1973 Section 504 of the Rehabilitation Act, 29 U.S.C. §794, became law. This section declared at the time of enactment that no otherwise qualified handicapped individual could be denied the benefits of or participation in any program or activity receiving federal financial assistance. In 1985 the Supreme Court decided that this section of the Rehabilitation Act did not authorize individuals to recover damages against state institutions because claims for such damages were barred by the Eleventh Amendment.2 Although the decision of the Supreme Court was later changed by congressional action in 1986, Justice Powell declared that a state would be liable for damages only if it had waived sovereign immunity or Congress had authorized suits for damages pursuant to its power under the Fourteenth Amendment.3 When the Americans with Disabilities Act was adopted in 1990, Congress specifically included a reference to its enforcement power under the Fourteenth Amendment, “to invoke the sweep of Congressional authority.”4 This should have ensured the broadest interpretation of enforceability for the act. However, in 2001 Chief Justice Rehnquist, writing for the Supreme Court, said that the Eleventh Amendment bars recovery of damages against states under the Americans with Disabilities Act because Congress had made an insufficient finding of a pattern of discrimination by the states against the disabled to invoke constitutional authority for abrogating sovereign immunity.5
In the history of the treatment of blind Americans, many, many states have adopted laws prohibiting blind Americans from serving on juries.6 Federal law permits the disabled to be paid less than the minimum wage today.7 In the interpretation of social welfare legislation, some states have required blind people to undergo sterilization operations if they wanted to receive public benefits or employment opportunities in certain state-run institutions.8 The graduation rate for blind students from high school is currently at approximately 45 percent.9 The unemployment rate for blind people is currently at approximately 70 percent.10 More than 5,000 blind people are employed in sheltered workshops for the blind, where they have rarely had opportunities for advancement into management.11 Until the mid 1970s employees in these sheltered environments were prohibited from joining unions or exercising the rights of collective bargaining.12 The inequities for blind workers in the sheltered workshop system are sufficiently long-standing and so thoroughly incorporated into the daily experiences of blind people that folk songs have been created such as the “Blind Workshop Blues” and “I’ve Been Working in the Workshop” sung to the tune of “I’ve Been Working on the Railroad.” One sentiment from such music says that the bosses in the workshop can’t raise my wages because I’d lose my Social Security.13 However, no pattern of discrimination exists, says the Supreme Court.
In the same case in which Chief Justice Rehnquist determined that no pattern of discrimination had been found by the Congress, he implied that disabled individuals are by nature less capable of performance than others. He said, “It would be entirely rational, and therefore constitutional, for a state employer to preserve scarce financial resources by hiring employees who are able to use existing facilities….”14 According to the Supreme Court, disabled individuals are more costly to employ than the nondisabled. Consequently, it is rational not to hire them—and constitutional. But there is no pattern of discrimination. I feel certain that the irony was lost upon the justices who employed a standard not supported by facts in the record and not offering equal protection to disabled and nondisabled individuals alike. The very language employed in this decision helps to establish the pattern of discrimination that was declared not to exist.
Dr. Jacobus tenBroek asserted that the equal protection clause of the Fourteenth Amendment requires equality, which has been defined in three different ways.15 One of these is that each person who is a citizen of the United States shall have equal opportunity to select government representatives without facing irrational burdens on the election process. One representation of this form of equality is captured in the phrase, “One man, one vote.”16 The second definition is that equal protection requires government guarantees of fundamental natural rights such as those denominated in the first eight amendments to the Constitution and other rights not listed in the document.17 The third interpretation of this requirement is that all people similarly situated shall be treated equally by government. This interpretation of equality requires classification of individuals in accordance with characteristics that have a rational relationship to the classification.18 A more rigorous test for classifications exists if those being classified are members of a “suspect class,” but the disabled are not among this highly favored group.19
Much of the debate that occurred in fashioning the Fourteenth Amendment revolved around the proper classification of slaves. If slaves are property, the clause of the Fifth Amendment prohibiting the government from depriving an individual of property without due process of law protects the interests of the property owner in these slaves.20 If the slaves are persons, the same clause of the Fifth Amendment prohibits slave holders from invoking governmental authority in support of their taking these persons who have a property interest in themselves, because these persons are protected against government-authorized taking without due process of law.21
Disabled individuals are bedeviled by arguments with respect to appropriate classification. Until 1990 the State Department of the federal government refused to accept blind American citizens as applicants for the Foreign Service.22 When protests regarding this policy incorporated reference to the nondiscrimination requirements of Section 504 of the Rehabilitation Act, officials of the State Department responded by agreeing to permit blind persons to apply. However, they said that strict equality would be required. Sighted people were offered the test for admission to the Foreign Service in print. Blind people would also be offered the test in print. Sighted people were not permitted to use the services of a reader during the administration of the test. Blind people would not be permitted to use the services of a reader during the administration of the test. If blind people could pass the test under these conditions, they would be accepted as employees of the service. Otherwise, they would not.23
When I was applying for admission to law school in the 1970s, I was told that because of my blindness I could not take the Law School Admissions Test. Today the Law School Admissions Council (LSAC) permits blind applicants to take the test. However, the Council decides what kinds of access technology will be permitted to a blind applicant, and the website of the LSAC, a site which must be used in making application to law schools, has not been usable by blind applicants.24 Similarly, until very recently, the National Conference of Bar Examiners decided how a blind person could take the bar exam.25 Blind applicants seeking the opportunity to take the bar exam argued that they should have flexibility in what methods would be used to comprehend the content of the exam. Methods familiar to these blind applicants for comprehending the content of written material should be permitted. To insist that unfamiliar methods of understanding test content are required is to test the capacity of the applicant to learn how to use these methods rather than to determine their fitness to take the exam.
The Law School Admissions Council and the National Conference of Bar Examiners may not have an animus against the blind, but they do not want to encourage blind people to participate in the legal profession. This is the inevitable conclusion of the decisions they have made to try to make it hard for the blind to get into law school and hard for the blind to get into the legal profession after graduation. They have classified blind people as undesirable, but there is no pattern of discrimination—the Supreme Court said so.
In 1927 the Supreme Court issued an opinion declaring that a Virginia statute authorizing forced sterilization of certain disabled individuals did not violate the Fourteenth Amendment of the Constitution.26 In that case a woman denominated “feeble minded” who had born a child said to be “feeble minded” and who was the daughter of another woman said to be “feeble minded” faced involuntary sterilization. The court said, “Three generations of imbeciles are enough.”27 However, that decision was made more than eighty years ago. Surely, it may be argued, governmental interference with family and reproductive rights for disabled Americans is no longer tolerated.
In the spring of 2010 the newly born child of blind parents in Missouri was taken from them, not because they were treating the child inhumanely, not because they were determined to be incapable of giving it love and affection, but because these parents are blind.28
If disabled Americans are to have full access to government programs, public accommodations, and employment, the barriers to entry and use of such programs and facilities must be removed and a spirit welcoming participation must be created. The barriers to entry and use are physical, informational, and social. Physical barriers require redesign of doorways, entryways, bathrooms, and the like. They also require redesign of information-management systems. Nonvisual access is needed for those who cannot effectively use print. This group includes the blind, those with severe dyslexia, those who cannot hold a book, and a number of others.
Although it is common to argue that the disabled are expensive, as Chief Justice Rehnquist did, it is less well recognized that the nondisabled are also expensive. Because I am blind, I never use a computer screen, which costs money to construct and to operate. Nevertheless, the program which verbalizes information contained in my computer is regarded as an expensive accommodation, but the computer screen used by the sighted is not.
To welcome the disabled into the community on terms of equality with others demands an alteration of thought, and we who are disabled are the primary agents of change. If the rights of those possessing disabilities become the subject of discussion once every quarter century or so, they may be ignored with impunity. Consequently, if we want our fellow human beings to recognize our value and our right to exercise that value, we must take action to help them know this value exists. We must insist that we be admitted to the law schools, to the legal profession, and to the judiciary. We must befriend legislators and take office ourselves. We must draft legislation that protects our rights. When our rights are ignored, denied, or belittled, we must sue the people who do so. We must become acquainted with officials in the executive branch, and we ourselves must seek office in that branch of government to ensure that the administration of the legislation adopted fulfills the intent of legislators who direct that the disabled may not be subjected to discrimination.
Sometimes we will encounter members of the judiciary sufficiently benighted that they cannot imagine a pattern of discrimination, but sometimes we will get the justice we deserve. This cannot happen unless we demand it. We must insist upon respect at all levels of government and society, and we must welcome those who want to work with us to assure equality for all.
As we do all of these things, we will be regarded as uppity, pushy, obnoxious, and belligerent. This is unfortunate, but it is one element of the transition of a minority group to first-class status in society. We will not always win. However, we cannot make progress unless we insist that the value we represent is recognized. Consequently, we must constantly demand that we be given the equal protection that our Constitution guarantees. In the long run such behavior will ensure that equality is ours.
1. U.S. Const. amend. XIV, §1.
2. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L. Ed. 2nd 171, (1985).
3. Atascadero State Hospital v. Scanlon, 473 U.S. 234 at pp. 235-236 (1985) reversed by the Civil Rights Remedies Equalization Act of 1986, 42 U.S.C. § 2000d-7 (a)(1).
4. Americans with Disabilities Act 42 U.S.C. §12101 (b)(4) (1990).
5. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L. Ed. 2nd 866 (2001).
6. See, for example, “Blind Citizens One Step Closer to Jury Service in the District of Columbia,” Braille Monitor July 1993: 815- 819 and “Jury Service in Tennessee,” Braille Monitor July 1985: 354-356.
7. Fair Labor Standards Act 29 U.S.C. §214 (c) (1938).
8. Seville Allen, Virginia’s Blind: From Custodialism toward Freedom through the National Federation of the Blind. Arlington, Virginia: National Federation of the Blind of Virginia, 2008.
9. Fredric Schroeder, “Literacy, Learning, and Enlightenment,” Braille Monitor August/September 2008: 666-669.
10. See, for example, “Unemployment Rate Soars as Literacy Rate Declines,” at <http://www.nfb.org/images/nfb/documents/pdf/Braille%20Literacy%20Crisis%20flyer.pdf> (2011).
11. Sheltered workshops for the blind receive federal contracts administered through an organization called National Industries for the Blind (NIB). The number of people employed in the workshops changes over time, but in March of 2011 NIB management said that the number was 5,600 <http://nib.org>. For detailed information about conditions that have existed in the shops see Jonathan Kwitny and Jerry Landauer, “Sheltered Shops: Pay for the Blind Often Trails Minimum Wage at Charity Workrooms,” The Wall Street Journal, January 24, 1979, pp. 1 and 35, and “Sheltered Shops: How a Blind Worker Gets $1.85 an Hour After 20 Years on the Job,” The Wall Street Journal, January 25, 1979, pp. 1 and 31.
12. The Chicago Lighthouse for the Blind, 225 NLRB, No. 46 (1976).
13. National Federation of the Blind Song Book. Baltimore, Maryland: National Federation of the Blind, 1991.
14. Board of Trustees of the University of Alabama v. Garrett, supra, at 372.
15. Jacobus tenBroek, Equal Under Law, (Originally published as The Antislavery Origins of the Fourteenth Amendment), First Collier Books in cooperation with the University of California, 1965: p. 19.
17. Ibid. at 20
19. Cleburne v. Cleburne Living Center, 473 U.S., 432, 105 S.Ct. 3249, 87 L.Ed. 2d. 313 (1985).
20. Jacobus tenBroek, Equal Under Law, (Originally published as The Antislavery Origins of the Fourteenth Amendment), published by First Collier Books in cooperation with the University of California (1965) pp. 42-56.
22. Rami Rabby, “The Blind Applicant Rejected: Why Not Diplomacy for the Blind?” Braille Monitor November 1989: 686-691; Gerry Sikorski, “Blind Persons in the U.S. Foreign Service: A View from Congress,” Braille Monitor November 1989: 691-696; and Marc Maurer, “Presidential Report,” Braille Monitor September 1990: 513-524.
23. See note 22.
24. In February 2009, a complaint entitled National Federation of the Blind et al. v. Law School Admissions Council was filed in the Superior Court for the State of California, Alameda County, case number 09—436691. In this case complainants alleged a number of facts of discrimination against the Law School Admissions Counsel. Although the defendants declined to acknowledge that these allegations are correct, the case is close to settlement with the understanding that access technology for the blind will be permitted to blind applicants.
25. Enyart v. National Conference of Bar Examiners, Inc., 630 F.3d 1153 C.A.9 (Cal.), (January 04, 2011).
26. Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927).
27. Id. at 207.
28. Baby Sent to Foster Care for 57 Days Because Parents Are Blind, ABC News Health, <http://abcnews.go.com/Health/missouri-takes-baby-blind-parents/story?id=11263491&page=2> (2010).