Braille Monitor                                                                  December 1985


A Year of Accomplishment: Sharon Gold Reports to the National Federation of the Blind of California

(As Federationists know, Sharon Gold is the competent and energetic President of the National Federation of the Blind of California. At the spring, 1985, state convention, President Gold reviewed the year's activities and set the tone for the time ahead. Her report contains such an impressive list of accomplishments that it might well be viewed with pride as the record of achievement for a twelve-month period not only by other state organizations but by most national organizations as well.)

During last year's Convention of the National Federation of the Blind of California we held a discussion and adopted a resolution concerning a case filed in the Alameda County Superior Court against the Bay Area Rapid Transit District (BART). This case, which was filed by two individuals and the California Council of the Blind, now an affiliate of the American Council of the Blind, seeks damages for injuries allegedly sustained by the two individuals when they fell from a platform into the tracks and seeks an order to require BART to install edge protection along the platform on the unfounded premise that edge protection will prevent blind people from "falling onto the tracks." When Dr. tenBroek conceived of the White Cane Law and we, the blind, sponsored legislation to bring into effect the White Cane Law, we wished for equal access, not special access, to all places of public accommodation. We wanted to remove the barriers arbitrarily imposed by well-intentioned and well-meaning persons who would prevent us from going where they deemed it unsafe for the blind to go. That was in 1968. Now in the 1980's blind persons who belong to and follow the philosophy of the American Council of the Blind are attempting to destroy our White Cane Law by seeking money damages for injuries sustained when they apparently improperly used their white canes. Further, these blind persons are seeking the court to order BART to provide special, rather than equal, access by ordering the installation of protective strips on the platform edge to protect the blind.

The judge issued a preliminary injunction ordering BART to field test materials for a protective edge detection system. We filed a motion to intervene in the case to attempt to preserve the White Cane Law. Following our intervention, we moved to have the injunction vacated. Among other things, we asserted that a blind person does not need edge protection to travel BART as safely as a sighted person. Further, we asserted that an edge detection system on BART would accord the blind uncommon treatment, without sound actuarial basis, and thus discriminate against the blind. We were unable to convince the judge of the inequity of the preliminary injunction. We have, therefore, now appealed to the California Court of Appeals to have this preliminary injunction set aside.

BART has now put some edge protection material on three of its station platforms. Just as we suspected would happen, there have been a number of people who have tripped and fallen as a result of the edge protection installed to protect the blind. These accidents are unfortunately drawing unnecessary, negative attention to the blind because the accidents are caused by needless modifications being made allegedly to protect the blind. This kind of public education is counterproductive to the goals and objectives of the National Federation of the Blind, goals which you and I work hard every day to develop, goals of public acceptance of the blind and a partnership with sighted persons based upon equality.

When considering this case, it is important to note that the case has invited the court to set safety standards for the blind which are premised on the age-old stereotype of the incapacity and incompetency of the blind. To put it bluntly, I submit to you that to invite the court to interpret safety standards for the blind is not only a beginning of what may become the end of our freedom of equal access, freedom to go where we want to go and do what we want to do. In other words the court may willingly govern our lives and change the meaning of the White Cane Law if the court is given the opportunity to do so.

Further, the plaintiffs are asking for two million dollars in personal injuries and ten million dollars in punitive damages for the intentional infliction of emotional distress on the blind. There is a real danger in speaking of personal injuries and safety standards and the right of equal access all in the same breath. How many of us have had to dispel the notion of prospective employers that the employer's insurance premiums would rise if the blind or disabled are hired? Today, we can make the argument to employers that their insurance premiums will not go up because of hiring us. This is probably one of the most persuasive arguments we have for breaking the job market. But what if a court has ruled that blind persons have received money damages for personal injuries under Section 54 of the California Civil Code, the very code section which gives us the right of equal access. If the blind use Section 54 of the Civil Code to sue for personal injuries based on the incapacity of the blind to take public places as they find them, we are likely to build a substantial record for insurance companies which could lead us to the exclusion of the blind from everywhere, including streets, sidewalks, public buildings, common carriers, housing, employment, and even a visit to the home of a friend or relative.

Art Linkletter of radio and television fame made a veritable fortune with the expression that "people are funny about money." If an individual's insurance premiums will increase or there is a likelihood of a successful lawsuit arising from the presence of the blind on the individual's property, we will cease to be accepted and welcome. I submit to you that if this happens to the blind, the precedent will be set, and it will affect the rest of the disabled community as well. The National Federation of the Blind of California is committed to do what we can to prevent this abuse of the blind and of our White Cane Law. Federationists will remember that in 1980 Michael Hingson was ejected from a Pacific Southwest Airlines plane when he refused to sit with his dog guide in a bulkhead seat. Michael sued PSA for damages resulting from the injuries and humiliation he sustained at the hands of the PSA airline officials. In 1983 Michael 's case came to trial and resulted in an unfavorable decision. The judge showed partiality to PSA by excluding evidence and testimony of importance to Michael's position. We appealed the decision and the Ninth District Federal Court ordered the lower court to hold a new trial and the judge to hear the evidence and testimony which he caused to be excluded. There will be a hearing in April to set the trial for Michael's case.

Last year we found Bob Acosta in so many violations of the January 31, 1983, court order that we were again forced to request Judge Crickard of the Los Angeles County Superior Court to issue an order to show cause why Bob Acosta should not be held in contempt of court. We went to trial on this issue on August 29, and the judge found Mr. Acosta and the California Council of the Blind in contempt of court for having telephone listings in the name "National Federation of the Blind of California. " For this violation of the January 31, 1983, court order Judge Crickard fined both Bob Acosta and the California Council of the Blind. Disliking Judge Crickard's decision, Bob Acosta turned to the California Court of Appeals, but the court denied his plea for help. Mr. Acosta then sought help from the California Supreme Court, which also refused to consider his appeal thus confirming Judge Crickard's Order of Contempt of Court against Bob Acosta and the California Council of the Blind.

Over the past several years I have reported to you concerning problems faced by blind parents in the raising of their children. This year the NFB of California again took part in the protection of the right of blind parents to raise their children without interference. Jim Tucker is a blind father who resides in Washington state, but who used to live in San Diego, California. Last September Jim Gashel of our National Office advised me of a telephone call that he received from Jim Tucker. Mr. Tucker reported to Mr. Gashel that he was a blind father seeking custody of his children through the courts in San Diego and that the issue of blindness was preventing the court from awarding the custody of the children. Upon investigation, I learned that in 1978, following a divorce from his wife, Mr. Tucker sought custody of his children when his wife became unable to care for them. A San Diego judge refused to award Mr. Tucker custody of his children because he was blind and the judge apparently considered a blind person unable to raise children. Mr. Tucker did not know about the National Federation of the Blind and did not know of his rights. Thus, the children were awarded to the maternal grandmother. Recently the custody of Mr. Tucker's children again became an issue before the San Diego court and again the issue of Mr. Tucker's blindness surfaced. I am advised that a social worker involved in the case reported to the court in reference to Mr. Tucker's daughter that were it not that Mr. Tucker is blind, she would recommend immediate placement of the child with her father, Jim Tucker.

At the request of Jim Tucker and his lawyer, the National Federation of the Blind of California filed declarations with the court in an effort to dispose of the concern over blindness prevailing in the court record. Always in the past when we have filed such papers, we have had blind parents file supporting documents as to the raising of their children. This time it seemed appropriate to take a different tack. Thus, we sought sighted children of blind parents for assistance. The NFB of California contacted Nick tenBroek, son of Dr. Jacobus tenBroek, a blind father; and Kevin Smalley, son of Nancy Smalley, a blind mother who is also a single parent. In the declarations filed on behalf of Mr. Tucker these children attested to their upbringing by blind parents. In addition to this, Andrew Meisel, attorney for the National Federation of the Blind of California, who has now been involved on behalf of the NFB of California in many child custody cases involving blind parents, filed a declaration of his knowledge of blind parents and their successes in raising their children.

Mr. Tucker has advised me that upon the filing of the declarations, the court dispensed with any further reference as to his blindness, and on November 30 he was awarded custody of his daughter. It is expected that he will soon be awarded custody of his son. Last fall I received a telephone call from Patty Cutler, the Vice President of our Hemet Valley Chapter. Patty reported to me that she had been contacted by a blind parent from the San Bernardino Area who had her two children taken from her under very unusual circumstances and who was to go to court the next day concerning the return of her children. On the evening the children were taken from her home, the mother had telephoned the police department for assistance, as would any other citizen, following the vandalism of her home by some older neighborhood children who broke out the windows and turned hoses into her house, filling it with water.

When the police arrived at the woman's home and found her, a blind mother with two small children, they ceased to be concerned with the vandals and the vandalism (the reason the police were summoned) and centralized their concern on whether the blind mother was fit to care for her small children. The police decided that the flooded house was unsafe for the children. It is customary in such conditions and circumstances for the police to inquire if the family can stay with neighbors or friends or to assist the family in finding other shelter. The importance of keeping the family together is to be considered the highest priority. Instead of protecting the family unit from separation, the police took the children from the blind mother and placed them in the county shelter. The mother was left in the unsafe house with broken windows and two inches of water to worry about the welfare of her children who had beer, carried away by the police.

Although the blind mother sought help from the Bob Acosta-led California Council of the Blind, now an affiliate of the American Council of the Blind, she was refused assistance. On the day before she was to go to court, the mother learned of the National Federation of the Blind of California and contacted Patty Cutler. Following my telephone conversation with Patty, I spoke with the blind mother who requested that I speak with her attorney.

The next morning, the day of the court appearance, I spoke extensively with the blind mother's attorney concerning the right of blind parents to raise their children. Although Patty Cutler was due momentarily to deliver her fifth child she, together with other members of the Hemet Valley Chapter, accompanied the mother to court and stood by her side as the blind mother faced the judge who would decide the destiny of her life with her children. I am happy to tell you that the children were returned to the blind mother and that they are once again living together as a family unit. In addition to these two court cases, we have had other reports of interference with the rights of blind parents. For example, one parent reported that following a parent/teacher conference, at which time the teacher learned that the child had a blind mother, a school nurse arrived at the parent's door to check out the home. After visiting with the mother for awhile, the nurse admitted to the mother that the school was concerned to see that all was well because there was a blind parent in the home. Sighted parents do not have their homes inspected by the school nurse without provocation as did this blind parent.

As another example a blind mother reported that her child was a few minutes late coming home from school so the mother telephoned the school to be sure that the child had left the school at the usual time. When the school official returned the mother's call after talking with the child's teacher, blindness became the issue--that is, whether the blind mother could adequately supervise her child. When a sighted parent calls the school to check on the lateness of a child's arrival at home from school, the parent is certainly not subjected to such questioning. It is obvious in both of these situations that the school was questioning whether the blind parent was exercising proper care and control of the child--a question which would never have arisen had the parent been sighted.

In 1978 Section 300(a) of the Welfare and Institutions code was amended to include language to prevent discrimination against the blind, the deaf, and the physically disabled. With the amendment the law currently reads, "No parent shall be found to be incapable of exercising proper and effective parental care or control solely because of a physical disability including, but not limited to, a defect in the visual or auditory functions of his or her body, unless (it says 'unless') the court finds that the disability prevents the parent from exercising such care and control."

Since this language has been added to the code, blind parents have experienced an even greater discrimination than prior to this time. For example, the language "unless the court finds that the disability prevents the parent from exercising such care and control" was used by the judge in the Shirley Wickenberg case of a couple of years ago to raise the question as to the safety of her home. The judge made such statements as "we have to be sure there aren't razor blades in the home to cut the children."

In the Patty Bardon case which we handled last year in the Orange County Court, the language of Section 300(a) was attempted to be used to allow the court to evaluate Ms. Bardon's adjustment to blindness which was an issue totally unrelated to the family situation which originally brought Ms. Bardon and her child into the court.

In every case we have handled regarding a blind parent (whether it has involved the courts, the district attorney, a social worker, or the schools) the language of Section 300(a) has been pointed to as something giving the authorities a license to shift the burden to the blind parents to prove that blindness does not prevent these parents from exercising proper care and control of their children. Thus, we see language which was put into the law to protect us, operating in reverse and flying as a red flag over the code section to call in "big brother" to check us out as parents who happen to be blind.

At the request of the National Federation of the Blind of California on March 5 Assemblyman Lloyd Connelly of Sacramento introduced AB-1360. This bill will, upon passage by the California legislature, amend Section 300 of the California Welfare and Institutions Code by deleting all references to the blind, the deaf, and the disabled. This amendment will force the courts, district attorneys, social workers, and the schools to evaluate our parenting qualities rather than our physical characteristics and will allow us to assert our right to raise our children as guaranteed to all citizens by the United States Constitution.

Speaking of legislation, we have sponsored, together with the Association of California Life Insurance Companies, Assembly Bill 1853. Passage of this legislation will amend Section 10144 of the Insurance Code, add Section 10145 to the Code, and will prevent insurance companies from refusing to insure or limiting the amount, extent, or kind of coverage available to an individual, or from charging a different rate for the same coverage solely because of blindness or partial blindness. This legislation is authored by Assemblyman David Elder of Long Beach. Senator Alan Robbins of the San Fernando Valley is the principal coauthor. AB-1853 came as a result of a resolution adopted on December 14, 1984, by the National Association of Insurance Commissioners which amended the Model Regulation on Unfair Discrimination on the Basis of Blindness or Partial Blindness. Following passage of the resolution which was drawn up in consultation with James Gashel, Director of Governmental Affairs for the National Federation of the Blind, the amendment was sent to Insurance Commissioners across the country for review and adoption.

Job Opportunities for the Blind (JOB) continues to be a most worthy and successful project of the National Federation of the Blind. JOB has now helped in the placement of more than 500 blind persons in competitive employment since the inception of the project four years ago. Through our efforts more than twenty-four blind Californians have obtained competitive employment during the last two years. This means that we are currently assisting one blind person per month in finding employment in California. Just last weekend our office received another call from a newly employed blind Californian.

During the past year we have worked very closely with the California State Personnel Board to publicize testings for state positions. As a part of our effort, we worked in cooperation with the State Personnel Board to publicize the Staff Services Analyst examination which was opened up by the Board to His panics and the disabled. A letter was distributed to our entire mailing list announcing the examination. Through our office, all of the examination materials were recorded on cassette and distributed on request to blind persons. We distributed approximately 250 packets of materials on the Staff Services Analyst examination. As a result, 29.9% of all persons taking the examination were blind.

Nancy Smalley is employed by the Los Angeles Office of the Department of Motor Vehicles as a Program Technician. Recently Nancy made application for an examination for advancement to the position of Driver Improvement Analyst.

Nancy possessed more than the minimum requirement of education, knowledge, and departmental experience required to enter the examination. The testing had two requirements that Nancy failed to meet--that of a valid California driver's license and a good driving record. Since the job entails being a hearing officer for California Driver's Licenses, where special circumstances exist, it is unreasonable for the Department of Motor Vehicles to prevent Nancy from taking the examination or getting a job solely because she does not drive a car.

On March 7th we filed an appeal with the California State Personnel Board asserting that Nancy should be allowed to take the examination for the Driver Improvement Analyst position and further asserting that to prevent her from taking the examination was unreasonable and in violation of the law. Within the week the Department of Motor Vehicles issued a notice to Nancy of a policy change dropping the requirement of a driver's license to take the examination. Nancy may now take the examination for the Driver Improvement Analyst, but all is not over yet. For although Nancy may take the exam for the job, she has also been notified that she will be required to obtain a valid California driver's license before she can be advanced to the new position. Next week we are going to appeal this requirement, too. We are the National Federation of the Blind, and we will take our wins in small bites or in big meals, however they may come.

Carmella Contasani of Monterey is a teacher of foreign languages who happens to be blind. She is also a member of the NFB. During the past year Carmella faced two instances of real discrimination against her because of her blindness. In the first instance, the community was holding a play in which there was a blind character. Carmella wished to try out for the part, but when she went to the audition she was prevented from auditioning and the part was given to someone else--a sighted person who knew nothing about blindness. Our Monterey Chapter (Betty Hendricks, President) engaged in several discussions with the theater group, and we now have been given assurance that any blind person wishing to audition for community plays in Monterey will be given the opportunity to do so in the future. Further, we have been promised advance notice of impending plays for which auditions will be held so as to give blind persons enough lead time to have scripts put into Braille.

In the second instance of discrimination, Carmella wished to participate in a square dance group. The caller of the group told Carmella she could not join and square dance with sighted people where she was the only blind person. There is a blind square dance group in Monterey, and Carmella was told that she should join that group if she wanted to square dance. But the square dance group for the blind is a beginners group, and the group in which Carmella wished to participate was an advanced group and Carmella is an experienced square dancer. Carmella thought she had a right to square dance along with her sighted community members in a group of nonbeginners, and we agreed with her. Negotiations were held with the square dance group leaders during which time it was brought to their attention that such exclusion of a blind person from a community square dance group because she was blind was in violation of Carmella's rights under the White Cane Law. As a result, Carmella was admitted to the square dance group.

Dennis Cain is a member of our Orange County Chapter and a student at the California State University at Fullerton. Wishing to be a Marriage and Family Counselor, Dennis sought and achieved a bachelor of science degree with a major in Psychology. Graduation was only a step toward Dennis's goal, because becoming a licensed family counselor requires a master's degree. Thus, Dennis applied for admission to and was accepted and enrolled in the master's program at CSUF. The Department of Rehabilitation has refused to provide Dennis with financial assistance beyond a bachelor's degree, claiming that a bachelor's degree in psychology is sufficient for entry level employment regardless of whether it is in his field. Dennis disagreed with this decision and took his case to the California Rehabilitation Appeals Board, which ruled in favor of the Department. Last Monday, March 25, we filed a writ in the San Francisco County Superior Court seeking a court ordered rehearing of the Dennis Cain case in order that Dennis may present new evidence to the Rehabilitation Appeals Board. We have received a hearing date for that writ, which is May 17.

My fellow Federationists, the health of the National Federation of the Blind of California has never been better. We stand at the threshold of a new day for the blind of this state and nation. We are the National Federation of the Blind, and we are actively changing what it means to be blind.