Braille Monitor               December 2023

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Securing Equal Protection under the Law: The Essential Role of the Organized Blind Movement

by Eve Hill

Eve HillIntroduction by Mark Riccobono: Our next speaker is not blind, but she is one of those allies that we recognize as truly being blind at heart. She has built a very accomplished career of advocacy in legal work, impacting people with disabilities and many others. She brings to life in the law the lived experience of people with disabilities. At the end of last year, when our general counsel, Scott LaBarre, passed away, I asked her if she would take up work as our general counsel. I knew that she not only had the technical expertise, but she had the deep understanding within herself about who we are, why our movement exists, and what is needed to advance our cause. Law 360 recently named her one of the Titans of the Plaintiffs' Bar for 2023. In that article, they asked her why she is interested in civil rights. She answered the question by saying, "Injustice makes me mad!" Here from Brown, Goldstein and Levy is Eve Hill.

I want to start off by talking about how honored I am to try to follow in the footsteps of the great Scott LaBarre. I knew Scott and I loved Scott, and I am not Scott LaBarre, but I will try my best every single day to follow in his footsteps.

President Riccobono suggested I let you get to know me a little bit today. I hate talking about myself, but I agreed to talk about why I'm a disability-rights lawyer working for the National Federation of the Blind. My husband uses a wheelchair, and that is not why I'm a disability-rights lawyer. I met my husband some twenty years after I became a disability-rights lawyer. But the fact that my husband has a disability helps shape my approach to disability rights and the fact that I believe people with disabilities are their own experts, are their own best representatives.

In addition, I have my own disability. I have bipolar disorder—and that is not why I'm a disability-rights lawyer. I was diagnosed ten years after I became a disability-rights lawyer. But my own lived experience helps frame the way I approach disability rights and how I know that your disability doesn't define you, just as my disability does not define me.

I grew up poor in rural Maine. Like many kids, I would often stomp my foot and complain that something wasn't fair. My mother would sigh and say, "Life is not fair." And I would scream, "Fix it!" Most of us grow out of that kind of tantrum, but not me. Righteous outrage is still my favorite emotion. I still stomp my foot and complain that it's not fair. I'm trying to spend some of my time on this planet trying to fix some of that unfairness. And that is why I'm a disability-rights lawyer. That's why the National Federation of the Blind is the best partner imaginable in that effort.

I have done a lot of things in the disability-rights movement. I have worked for the Justice Department's Civil Rights Division twice, both as a line attorney and as a member of the Obama administration. I ran the Disability Rights Legal Center at Loyola Law School, where I did high-impact disability-rights litigation and taught law students to be disability-rights lawyers. I started the District of Columbia Government's Office of Disability Rights, working to make the District a model of inclusion for people with disabilities in government services. And I worked for the Burton Blatt Institute at Syracuse University. And in all of these positions I worked to implement disability rights laws, whether by taking on impact litigation, writing a casebook, teaching law students, making city agencies comply with the Americans with Disabilities Act, or helping states support employment of people with disabilities in competitive, integrated employment and not in sheltered workshops.

For the past six and a half years I have been in private program practice at the fantastic law firm of Brown, Goldstein and Levy, where I also run the inclusivity strategic consulting practice. I'm incredibly honored to serve as general counsel for the National Federation of the Blind. I wanted to talk about why no other organization is as powerful in securing equal protection under the laws as the NFB, and why working for the NFB is the culmination of my career as a disability-rights lawyer.

The NFB has a long history of using and shaping the law to support the equal rights of blind people. The founder, Jacobus tenBroek, was a leading lawyer and constitutional scholar who helped shape the interpretation of the United States Constitution to protect the rights of the blind. He used the law to demand the full range of rights and responsibilities of citizenship for blind people, and NFB has been doing the same thing for more than eighty years. Dr. tenBroek and the NFB envisioned the principles that eventually would become the federal disability civil-rights laws we work under today. They incorporated those principles into their work long before the ADA was even a dream. Once the law began to reflect an equal-rights framework for the blind, the NFB developed a legal program to implement it, shape it, and lead its development in the courts.

In the 1980s, Dr. Kenneth Jernigan and Dr. Marc Maurer developed what is now the NFB's robust legal program. At first, the legal program was primarily a defense against attacks on the organized blind movement, on the NFB itself, and on its leadership. Then Dr. Maurer hired the great Dan Goldstein, my predecessor, mentor, and friend, to take on affirmative challenges to the rights of blind people. This included their rights under the Randolph Sheppard Act, their rights to be parents, and their equal right to employment.

Now, bear in mind that for the first few years of this program there was no ADA. The NFB's legal program had to be creative, using state law, federal law, and constitutional law. They used the expertise of blind people who spoke up for themselves and each other and served as models to teach lawyers, judges, juries, and defendants about blind people. It took chutzpah to support equal rights for blind people before the law was set up in our favor.

The legal program in its current form really began around 1999, when Dr. Maurer recognized that the emergence of digital technology offered a tremendous opportunity but also a huge potential risk for blind people. My friend Dan Goldstein remembers the conversation in which Dr. Maurer noted that in his house he was able to access his thermostat and kitchen appliances and everything else he needed to control his environment independently, because everything had a tactile element. But if he moved to a new house, all those devices would be digital, controlled by touch screens, and they would be inaccessible to him. Technology that should make life easier and better for blind people was being rolled out without any consideration of the blind. As a result it was making life harder and less accessible. So Dr. Maurer asked Dan to get the attention of the folks developing these emerging technologies.

As a result, the National Federation of the Blind sued America Online, at the time the biggest player on the Internet, challenging their inaccessibility. The NFB followed that suit with a suit against Diebold, challenging its inaccessible ATMs, and a suit against Target for its inaccessible website. The NFB has led the fight for digital accessibility for nearly twenty-five years now.

The NFB has brought suits challenging Amazon's inaccessible Kindle e-readers, Travelocity and monster.com, and H&R Block. It has called for the application of the ADA to business websites, educational technology, employment technology, digital books, and other forms of technology. It's fair to say that without the NFB the technologies that are everywhere in our world would be completely inaccessible to this day.

In one of the most significant victories, the NFB in the HathiTrust case established that making materials accessible for blind people is a fair use under the copyright law. There is no excuse for the law to stand in the way of digital literacy for the blind. As other disability-rights advocates say to me all the time, "Thank goodness for the NFB."

The NFB understood how the ADA should apply to the Internet, even though no one had thought about it before. It understood how the ADA should apply to digital technology. The NFB's legal program developed the legal framework for applying the ADA to that technology across contexts of employment, education, government services, and public accommodations, and the NFB and its lawyers and members persuaded courts across the country to adopt that legal framework.

Under the leadership of President Riccobono, the NFB’s legal program has grown. The legal program today takes a strategic approach to making systemic change. It has established priorities of access to digital technology, employment, education, civic participation, healthcare, and the Randolph Shepherd Program. The NFB’s legal program takes on some of the most important issues facing blind people today, from challenging employment discrimination, to ensuring blind people are not separated from their children, to making electronic books and the Internet accessible, to challenging sheltered workshops and subminimum wage, to ensuring that new transportation mechanisms work for the blind.

The NFB legal program takes cases that have a systemic impact and bring results that create precedents that apply far beyond any individual case. The power of the organized blind to make change through legal action has been evident to me in the years I have worked alongside the NFB, including the six-and-a-half years I have been at BGL. We've advocated successfully for accessible electronic absentee voting in over a dozen states. As a direct result of NFB's work, blind people in Maryland, Ohio, Michigan, Pennsylvania, New Hampshire, Maine, New York, Virginia, North Dakota, Tennessee, Illinois, and very soon Bexar County, Texas, can vote absentee privately and independently.

The NFB has established the right to accessible websites for everything from retail stores to fast food to tax preparation to travel to voting and federal government services. We have established the right of blind federal employees to enforce their rights under Section 508 of the Rehabilitation Act. And we've established the right to have other technologies accessible as well, including ATMs, kiosks, voting machines, eBook devices, and restaurant ordering devices. We will keep insisting on the accessibility of all emerging technologies, including those that use artificial intelligence. We also have fought for the right to have important information communicated in accessible formats, such as Braille, large print, and accessible electronic formats. We required the IRS to make tax information available to blind people in accessible formats. And right now we are challenging the University of North Carolina healthcare system to make important healthcare information and medical billing information accessible. We're waiting for an order from the court.

The NFB has stood up and continues to stand up for the employment rights of blind people, challenging inaccessible workplace technology at Amazon, Comcast, Williams Sonoma, and federal agencies, just to name a few ongoing cases. We challenged the discriminatory attitudes and policies of employers who refuse to hire blind people because of their misconceptions about blindness, such as employers who believe blind people can't be childcare providers or teachers. We have challenged the prejudices that lead government agencies and employers to relegate blind people to segregated subminimum-wage sheltered workshops.

The NFB has stood up over and over again for the rights of blind parents. We take on these cases in the face of state agencies acting on prejudices and stereotypes to try to terminate parental rights. We stand up to public agencies that make uninformed decisions about blind foster and adoptive parents. We stand up to spouses and courts that rely on prejudice to decide child custody.

The NFB recognizes the crucial importance of education. Its legal program fights discrimination in public education, higher education, testing, and credentialing. Recently you all heard about the case against the Los Angeles Community College District, which went to trial, twice, and culminated in a verdict finding that LACCD discriminated against students Roy Payon and Portia Mason by failing to purchase and use accessible technology. The plaintiffs were awarded over $240,000 in damages.

The NFB has also reached comprehensive accessibility outcomes with schools such as Florida State University and Miami University, but the fight continues. Now the NFB and three brilliant blind students are challenging Oregon State University's failure to make course materials accessible. We're challenging discrimination against blind students by the Harvard Kennedy School and the Berklee College of Music.

So what makes the NFB special and especially effective in advocating for equal rights? I talked to several advocates about this, and it's a combination of factors. One is that the NFB is the voice of the nation's blind. The NFB speaks for you as real blind people and reflects your priorities and principles. It has legitimacy when it sets priorities and takes on cases. Anyone who misunderstands that the NFB is advocating for anything less than justice for the blind does so at their peril.

And the NFB is brave. It is willing to take on the biggest companies and the biggest government agencies, including scary ones like the FBI. We will even challenge entities that are supposed to be our allies when they fail to do their jobs, as we did with the Department of Education's Office for Civil Rights. The NFB is willing to use litigation as a tool and to take cases all the way to judgment and even appeal in order to reach binding and precedential decisions.

The NFB will not accept halfway settlements that don't actually fix the problem, even if the other side offers cash. And the NFB is not afraid of losing a case. It recognizes, as Dr. Maurer often has said, "We may lose the battle, but we don't lose the war, because we don't stop fighting until we win."

The NFB is creative. It will color outside the lines when necessary, as it did when it intervened as a defendant when the Authors Guild sued the HathiTrust to prevent digital books from being made accessible to the blind. The NFB takes cases for the right reasons and insists on resolutions that further those reasons. Justice for the individual plaintiff is important, but the NFB's insistence on public settlements is one of the most important aspects of its legal program. Each decision, settlement, or other outcome is available for others to learn from and acts as a precedent and a deterrent for other entities.

The NFB is bold. The organized blind movement is not going to wait around for somebody else to take on its battles. The blind stand up for themselves and for each other.

While the NFB compromises when it makes sense, it doesn't compromise its principles. As President Riccobono often reminds me, the NFB will not pull its punches.

Speaking of President Riccobono, the NFB leadership is another reason the legal program here is so incredibly powerful. Judges and defendants often push you to accept half measures or to let go of your legal principles, but President Riccobono and the Board of Directors of the NFB never lose sight of the point of every case. They hold tight to the principles of NFB's mission.

Finally, the reason the NFB is such a powerful force is that the NFB is you. You are the real experts on blindness. You are the best clients in existence. You are willing to be plaintiffs and stand up for principles. You're willing to stick it out all the way to get the right result, and you don't give up halfway through. You are outstanding representatives of the blind community. Your actions and your credibility educate defendants and judges and juries better than any lawyer can. In short, the NFB is extraordinary!

I will also note that that NFB has some pretty great lawyers. Working with Tim Elder, Al Alia, Lauren McLarney, Jesse Weber, Sharon Krevor-Weissbaum, Andy Freeman, and others is an amazing privilege.

I want to leave you with a thought from President Obama that embodies the NFB for me. “Change will not come if we wait for some other person or some other time. We are the ones we have been waiting for. We are the change that we seek.”

Thank you to the NFB for everything you do!

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