Braille Monitor                                                August/September 2012

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The Policy of Integration Enforceable at Law

by Eve L. Hill

Eve HillFrom the Editor: On Thursday afternoon, July 5, Eve Hill, senior counselor to the assistant attorney general for civil rights, addressed the convention. She is a nationally recognized expert on disability rights law. She was senior vice president of the Burton Blatt Institute at Syracuse University and has been responsible for the Institute’s disability rights policy. Before that she was the founding director of the Washington, D.C., Office of Disability Rights, a cabinet-level office. She has been the executive director of the Disability Rights Legal Center in Los Angeles and has written extensively on disability rights. She has worked with Dan Goldstein, the NFB’s lawyer for twenty-five years. This is what she said:

In America the phrase “civil rights” evokes a powerful emotion, visions of the 1960s, Dr. King on the steps of the Lincoln Memorial, protestors on the Edmund Pettus Bridge, students at lunch counters and university doors; and similarly individuals with disabilities have faced every day the indignities of not being able to enter a hotel swimming pool or get on a public bus. We’ve been barred from attending school and getting jobs. Individuals with disabilities have organized to fight for our civil rights, incrementally working our way out from under the weight of immoral laws, misguided social mores, and irrational fears, facing dozens of defeats for each victory. I’ve sat in this audience and heard you sing “We Shall Overcome” to my dear friend and colleague Dan Goldstein, and you have earned that song.

The Americans with Disabilities Act literally opened millions of doors for individuals with disabilities across the country. This law has had implications no less important or far reaching than the landmark civil rights laws of the 1960s, and in the two decades since its enactment the ADA has revolutionized the way the rest of society in the United States and beyond thinks about people with disabilities and the way people with disabilities live in our communities. But that doesn’t mean we’re done.

Business owners, public officials, and the media still feel free to state publicly the opinion that, because a ramp or an accessible piece of technology costs money, that is a sufficient reason to deny people with disabilities access. And they are not met without outrage; they’re taken seriously, as if even twenty-two years after the passage of the ADA and nearly forty years after the passage of the Rehabilitation Act, the cost-benefit analysis were the key to a civil rights law.

In the Civil Rights Division of the Justice Department, we still see every single day, and I know you see it too, barriers facing individuals with disabilities that stand in the way of allowing people to maximize the contribution they make to society. And my boss Tom Perez and his boss Attorney General Eric Holder and his boss, the President, are committed to taking on that discrimination every day. [Applause]

So I want to talk to you about a few of our recent activities that particularly affect people who are blind or who have low vision. In the technology area, as Kareem mentioned, we know modern technologies pose significant challenges, and we have to ensure that technologies don’t leave people with disabilities in their wake. The underlying theory of the ADA is that we wouldn’t make the existing world accessible all at once; we would do that gradually as old things were replaced with new things. New technology is where the rubber meets the road on that theory. These are new things, and they should be born accessible. [Applause]

Technology has revolutionized our economy and our culture. It’s made communicating and obtaining information, entertainment, education, and goods easier and more efficient. But many of these technologies from websites to cell phones, from ticket kiosks to TV set-top devices are either wholly or partly inaccessible to both to people who are blind or people with other disabilities. It is the position of the Justice Department since the late 1990s that the ADA applies to websites, including websites and online services of online-only public accommodations.

Companies that do not consider accessibility in their website or product development will come to regret that decision because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds the technology opens up. Most recently we pursued accessible technology through two statements of interest in National Association of the Deaf versus Netflix. The National Association of the Deaf sued Netflix to require Netflix to caption its online watch-instantly movies. We opposed Netflix’s attempts to dismiss the case. Our brief made clear that Title III of the ADA applies to online-only businesses and requires their online services to be accessible. [Applause]

We also made clear that Netflix is responsible for making its online services accessible and that the twenty-first century Communications and Video Accessibility Act, CVAA, as great as it is, does not preempt application of Title III of the ADA. The Massachusetts court twice now has refused to dismiss the case and held that Title III covers online businesses, covers online services even if they’re accessed only in your home, and that copyright doesn’t necessarily preempt Title III and that the CVAA doesn’t preempt Title III. [Applause] Now why is this important for blind people? It’s brought by a deaf group. It’s the same standard. If online-only services have to be accessible for deaf people, they also have to be accessible for blind people. [Applause]

This follows up on work we’ve done before, the 2011 settlement agreement with the law school admission council to make its law school website accessible to people with disabilities. And the department is also addressing technology accessibility in its rulemaking. We issued advance notice of proposed rulemaking on accessibility standards for websites and expect to publish an NPRM [notice of proposed rulemaking] this year.

Now we’re involved heavily in the education arena. I know you’ve heard someone from the Department of Education, Seth Galanter, speak today. But we’re exercising our expanded ability to pursue complaints about discrimination in public, private, and higher education. So in a number of contexts we’re challenging the argument that schools should have unfettered discretion to decide what accommodations to permit as long as they comply with procedures. So in K.M. v. Tustin Unified School District, we filed an amicus brief on behalf of a student with hearing impairments who asked her school for real-time captioning and was denied. The district court had said, “Well she’s getting a meaningful benefit from her education, and that’s all that’s required under the Individuals with Disabilities Education Act.” Our brief argued that Title II of the ADA applies a different and in some cases sometimes greater standards than the IDEA, and the schools have to look at both. So the ADA in this context required effective communication, not only meaningful benefit, from the education. [Applause] So again, although this case was on behalf of a deaf student, it has the same standards that would apply to blind students and other students with disabilities.

So under our approach a public school must consider, not just whether the student is getting enough information from her school materials to benefit from the education under the IDEA, but also under the ADA whether the student is getting information that is equally effective as her classmates.

In Argenyi v. Creighton University we filed an amicus brief in the Eighth Circuit on behalf of a medical student with a hearing impairment who needed captioning in class and an oral interpreter in clinics, and the school had said, “No, we don’t think that’s appropriate. We don’t need to do that.” Our brief argued that the university is not entitled to unfettered deference in determining what auxiliary aids are required. This case explores the limits on deference. Courts have traditionally given schools a lot of leeway to decide: “Well we don’t think that’s good; we don’t think that’s good; you can only have this.” And we argued that they should only get that kind of deference in making decisions about what the degree should require, what the academic requirements are, not what auxiliary aids should be provided. [Applause]

And there’s more. We are also working to ensure that admissions and license testing, whether for higher education or business certifications, are accessible to people with disabilities. To that end we are requiring testing providers to test in ways that best insure that the test measures knowledge or skill, and not disability. We recognize that this standard is not coextensive with reasonable modifications or effective communication but may require more. We had previously filed a statement of interest in a case of an NFB member seeking to take a multi-state professional responsibility exam with auxiliary aids. And just last week we filed a statement of interest in Department of Fair Employment and Housing versus Law School Admission Council in California. The plaintiff in this case claims that the Law School Admissions Council discriminates against test takers with disabilities by requiring unreasonable levels of documentation, by failing to make sure that the test best insures that it measures skill and knowledge rather than disability, and by flagging accommodated test scores. The department’s brief argues that the new ADA regulations limiting documentation are valid, that test providers can require only reasonable documentation, and the department’s brief argues for the first time that flagging of accommodated scores, which calls out people as having gotten an accommodation, is a violation of the ADA. [Applause]

We are not bored! Meanwhile we are working to end the tradition of unnecessarily segregating people with disabilities in institutions. In 1999 with the Olmstead decision the Supreme Court answered the question posed thirty-three years earlier by Dr. tenBroek in his article, “The Right to Live in the World.” He asked, “Are persons after all not to be persons if they are physically disabled. Are members of the community to be robbed of their rights to live in the community, their certificates cancelled upon development or discovery of disability?” Olmstead established that Title II of the ADA requires that people with disabilities in institutional settings must be integrated in their communities when appropriate and that it is a violation of the law to unnecessarily segregate them from society. It was the Brown v. Board of Education of the disability rights movement, and Tom Perez has led the department’s efforts in this area. The department has laid down the law with statements of interest in over thirty cases, technical assistance documents, and case after case demonstrating that people with developmental disabilities, mental health disabilities, physical disabilities, vision disabilities, and every other kind of disability, who are in or at risk of entering an institution, have rights to community-based services.

Nothing in the ADA or the Integration Mandate is limited to residential settings. The division has expanded its Olmstead work to look beyond where people live to examine how people live. Simply moving someone from an institution to a community-based residence does not achieve community integration if that person is still denied meaningful, integrated ways to spend their days and is denied the opportunity to do what we all do, work in the community.

So last week we issued a letter of findings identifying Olmstead violations in the state of Oregon’s system of employment and vocational services. We found that the state is violating Olmstead by unnecessarily segregating into sheltered workshops individuals with disabilities who could and want to work in integrated employment. [Applause] We found the state unnecessarily funds sheltered workshops, that its schools and VR systems unnecessarily place people in sheltered workshops, and that subminimum wages and discrimination unnecessarily keep people there. [Applause]

I have one more minute. I only want to say that attitudes are shifting and they have a long way to go. And, as we work to take on these long-standing barriers, we also tackle the emerging ones head on. We have no illusions about the significance of the challenges ahead, but we will move forward. Dr. King said that “The arc of the moral universe is long, but it bends towards justice.” So let’s all reach up, grab that arc, and pull it towards people with disabilities. Thank you very much. [Applause]

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