Braille Monitor                                               October 2013

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A Commitment to Equality of Opportunity: A Report from the Department of Justice

by Eve Hill

From the Editor: Eve Hill is the deputy assistant attorney general in the Civil Rights Division of the Department of Justice. Federationists first met Ms. Hill when she worked for Dan Goldstein at the law firm of Brown, Goldstein, and Levy, and she has addressed our convention several times. She is a champion for civil rights, and here is what she said to the 2013 convention:

Eve Hill speaking at the 2013 conventionThank you all so much for having me here today. That was the first time my new title has been announced in public, and it sounds good—I like it. It is really an honor for me to be here today; I'm only disappointed that my friend, Dan Goldstein, is unable to join us this year, but I think he's listening, so I want all of you to join me in a shout-out to Dan. [Applause]

Despite being entitled "A Report from the Department of Justice," I'm really going to talk about the theme "The Tyranny of Low Expectations." For many people with disabilities, including people with vision disabilities, the tyranny of low or no expectations has cut off the opportunity to work, learn, play, and contribute alongside those without disabilities, and that tyranny of low expectations is something we in the Civil Rights Division see every single day: in the assumptions often written into law that tell people with disabilities what they can't do and that they can't participate in the world, in the so-called special programs that are described as opportunities or preparation for full participation, but then become permanent, segregated prisons, and in the barriers that stand in the way of allowing all people to maximize the contribution they can make to society. So we're working very hard to change those expectations, open up full participation, and break down those barriers that stand in the way of people with disabilities.

Just this last year, just in FY [fiscal year] 2012, the Disability Rights Section alone filed twelve lawsuits and twelve amicus briefs and entered into fourteen consent decrees, forty-nine settlement agreements, and 162 informal resolutions under the ADA, and we're well on our way to beating those numbers this year.

The Division's disability rights work is not done just by the Disability Rights Section. The Special Litigation Section, the Housing and Civil Enforcement Section, the Voting Section, and the Educational Opportunity Section also do disability rights work. This crosses all of our sections more than any other area of our civil rights work. I want to talk today about a couple of the things the federal government has been doing recently on behalf of people with vision and other disabilities to combat the tyranny of low expectations.

I'm following a lot of great technology speakers today, which is a little intimidating for me—just a lawyer. We know that modern technologies can pose significant challenges, and we must ensure that those new technologies don't leave individuals with disabilities in their wake. One underlying theory of the Americans with Disabilities Act was that we wouldn't make the existing world accessible all at once, but, as new things replaced old things, the new things would be accessible, and gradually everything would become more accessible. New technology is where the rubber meets the road for that theory [applause].

Technology is revolutionizing our economy and culture, making communication and getting 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 partially inaccessible to people with vision impairments. The current transition from printed materials to digital materials creates incredible opportunities for people with visual disabilities finally to use the same products as their peers at the same time and for the same price as everyone else.

The emergence of electronic book readers holds huge potential to place students with disabilities on an equal footing with other students. But our traditional approach to the effective communication obligation under the ADA has been a one-at-a-time, on-request approach. That one-at-a-time, on-request approach we're finding isn't working in a number of contexts; so, if governments don't design our zoning laws or our parking lots from the beginning with room for people with disabilities, if schools and restaurants and doctors don't already have a contract with a sign language interpreter, and, if theaters and stadiums and playgrounds don't already build in accessible seating and features, then, when a person with a disability asks for an accommodation, it won't happen, either at all or on time. This is really true in the area of technology. Providing special electronic texts or captioning or retrofitting technologies to work with screen readers takes too long or doesn't happen at all when it's not built in from the beginning. Even when it does happen, it requires a level of begging or confrontation that people with disabilities aren't comfortable with and shouldn't have to go through.

In keeping with the disability community's movement away from charity-based thinking and towards rights-based thinking, we're seeing more and more demands to require covered entities to be prepared for people with disabilities to be their customers, their employees, and their constituents all the time. Proactive digitization, proactive arrangements to buy accessible technology are more and more called for in order actually to achieve the ADA's goal of equally effective communication, and DOJ is working to make such proactive accessibility the norm [applause].

I think you've heard me talk about websites probably every time I've been here, and I'm still not sick of talking about it, so I'm going to. Website accessibility is now a central and standard requirement of our Project Civic Access investigations and settlement agreements. These are compliance reviews of local governments that look at a variety of accessibility needs. For example, just this year, in May 2013, the department reached a settlement with the city of West Columbia, South Carolina, that requires the city of West Columbia to make its web content accessible to people with vision disabilities. That's the third of those agreements that we've reached in 2013 to require city web content to be accessible. In fact, since 2008 the Justice Department has reached Project Civic Access agreements with fifty jurisdictions to remove architectural barriers and make their online content accessible for people with vision impairments.

We're still fighting over accessible websites, particularly to online-only businesses. We recently pursued two statements of interest in National Association of the Deaf versus Netflix. The National Association of the Deaf sued Netflix to require captioning on its online watch-instantly movies, and our brief made clear that Title III of the ADA applies to online-only businesses and requires their online services to be accessible. Netflix is responsible for that, and the 21st Century Communications and Video Accessibility Act doesn't preempt the ADA. The Massachusetts District Court agreed and held that Title III covers online-only businesses, covers online services even if they are accessed only from people's homes, that the copyright law doesn't necessarily preempt Title III, and that the CVAA doesn't preempt Title III. This case recently settled with an agreement that Netflix will make 100 percent of its streaming videos accessible by 2014.

Now moving to education: many colleges offer degree programs online, some schools exist only online, and massive open online courses are increasingly prevalent. Today colleges rely on the Internet and other technologies for course assignments, discussion groups, and a variety of administrative functions. Schools are starting to offer online document sharing, web conferencing, streaming video, social networks, and even virtual reality programs—can you imagine the virtual campus? And accessibility of those technologies to students with disabilities is essential. We're looking right now at accessibility of those educational technologies, and you can expect to hear more from us pretty soon.

As you know, Section 508 of the Rehabilitation Act requires federal government technology to be accessible, and I'm not afraid to talk about our own obligations in the federal government. Despite a requirement that a survey of federal agency compliance be conducted every two years, that survey had not been done since 2003. But early last fall the Department of Justice published the results of the survey, and we're now working with other agencies to implement cross-agency-consistent practices, as well as working with other agencies to develop shared tools and best practices to increase our ability to meet our Section 508 obligations consistently, all the time.

We're also engaged in rulemaking—I know you've been hearing about this since 2010—but we really are. There are a variety of technology rulemakings upcoming. We issued an advance notice of proposed rulemaking (ANPRM) on accessibility standards for websites and expect to publish a notice of proposed rulemaking this year. We also published an ANPRM for accessible movie theaters, including both captioning and audio description at movies, and we expect an ANPRM this fall.

Now my most recent piece was very much responsive to what you specifically have asked for. You, advocates for people who are blind or have vision impairments, have demanded an end to the book famine, and, thanks to the efforts of advocates like your Scott LaBarre and Fred Schroeder, we're going to do just that. Just last week I was honored, unbelievably honored, to work with Justin Hughes, Terry Ray, and Sherea Purlmutter and others from the Patent and Trademark Office, as well as the Department of State, the copyright office, the Institute of Museum and Library Services, and the US trade representative to negotiate the Miracle in Marrakesh. President Obama, in April 2012, expressed the United States' commitment to a treaty that ensures that copyright is not a barrier to equal access to information, culture, and education for visually impaired persons and other persons with print disabilities—and just last week we made good on that promise. This World Intellectual Property Organization Treaty, negotiated by over 150 countries—picture 150 countries trying to negotiate over the word "this" or "that"—this treaty will expand the availability of accessible works worldwide, while staying true to basic international copyright norms. Under the treaty, ratifying countries will ensure that their copyright laws domestically allow the creation and distribution of accessible books without prior authorization of copyright holders and will allow cross-border exchange of accessible books without prior authorization by copyright holders. The treaty will become effective when twenty countries ratify it, so we've got to get started on that. This is a real step to ending the book famine for some three hundred and forty million people across the world who are blind, have vision impairments, or have other print disabilities, but it's only one step. We get to celebrate, and Stevie Wonder got to give a concert, which was great. This is an accomplishment. But it's one step on the road to ensuring that people who are blind have a chance to get the information and education they need to live independently and function as full citizens in their communities. In the US the treaty will go into effect only when the president signs it and it is ratified by the Senate. So now we know where our efforts are going.

And even then there's more. Even once member states ratify the treaty, additional authorized entities will have to be established and build their capacity, and confidence in cross-border exchange of accessible format copies will have to increase as the new standards set in. People with print disabilities will have to raise their expectations and demand access to every book, from See Spot Run to Harry Potter to my book, Disability Civil Rights Law and Policy (I know you're all running out to buy that). We are looking forward to working with all of you to accomplish these next steps. Only then will we have moved closer to a future for persons with print disabilities in which, as Jacobus tenBroek said: "The aspirations and achievements of each of us are to be limited only by the skills, energy, talents, and abilities we bring to our communities."

As you know, the UN Convention on the Rights of Persons with Disabilities was not ratified last winter. However, the administration remains committed to ratifying the convention because it's important. US ratification will make clear that the United States supports inclusion and nondiscrimination and that it supports our over fifty million Americans who have a disability, who want to serve, study, work, travel, or retire overseas. Right now that kind of living overseas or traveling overseas is simply not a realistic option because we can't take advantage of those educational, economic, and cultural opportunities because the accessibility is not similar to ours or not up to par. Ratification will help ensure that Americans with disabilities have equal access throughout the world, and that will change the low expectations of the entire world.

Now you've probably also heard me talk about Olmstead. We are continuing to work to end the low expectations that result in people with disabilities being unnecessarily segregated in sheltered workshops and other institutions. I know you all are doing this work too. In 1999 the Supreme Court recognized that the ADA creates a right not to be forced to live in an institution but instead to be integrated into our communities whenever it's appropriate. It was called the Brown vs. the Board of Education of the disability rights movement. Three weeks ago we showed once again that separate is not equal and separate employment services cannot be the expectation for people with disabilities. We announced a landmark, first-of-its-kind settlement agreement between the United States, the State of Rhode Island, and the City of Providence that vindicates the rights of approximately two hundred people with intellectual or developmental disabilities. Our investigation found that for too long the state and the city had allowed their low expectations to create a system that left people with disabilities no choice but to enter sheltered workshops. As a result one of the largest employment providers for people with IDD in Rhode Island, called Training Through Placement [TTP], grew fat from state payments and the work of about a hundred people with disabilities who were paid on average $1.57 an hour, and one as low as fourteen cents an hour.

We also discovered a sheltered workshop in a Providence high school called Birch, where students with IDD worked one to two hours a day, every day, from age fourteen to age twenty-one. They were paid between zero and two dollars per hour, regardless of what they were doing or how productive they were at it. They were doing the same tasks, often even subcontracting for the adult sheltered workshop. So—no surprise—when they graduated, they went straight to TTP and stayed there for decades. Under our settlement agreement both the school and TTP have stopped sheltered workshop operations, and both will dedicate themselves over the next year to providing all two hundred people with supported employment placements—real jobs, at or above minimum wage. Those jobs will average at least twenty hours a week, and, when they're not working, they'll be in integrated day activities; no longer playing cards or coloring or talking to their coworkers with disabilities at the same facility where they worked. The students at Birch will now receive transition services that are designed to prepare them for real jobs, including internships and trial work experiences and placements when they graduate.

We were not alone in this. The Wage and Hour Division at the Department of Labor is demanding back wages for the workers at TTP for wage violations under Section 14(c). Meanwhile our investigation of the state-wide system as a whole is continuing.

Now we'd all like to think that exploitation like this is an anomaly—just a rare bad apple—but it's not true. The same low expectations, assumptions, and prejudices that led to the creation and continuance of TTP and Birch underlie similar sheltered work systems all across the country. That's why we've also issued a letter of findings and intervened in a lawsuit in Oregon, challenging its overreliance on sheltered workshops to provide employment services to individuals with disabilities. I'm incredibly proud of this work. I'm incredibly proud to be part of this very powerful disability community. So my expectations are high and keep rising. I know you have high expectations of me and of DOJ, and we don't plan to disappoint those expectations. Thank you very much.

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