Below are two articles from the disability rights publication "Ragged
Edge." the first is from march, 1998 and the other is from the current
September issue. they describe the commitment the U.S. department of
Justice has toward disability access. If you believe that the Justice
Department or the United States government is going to change
significantly the status of people with disabilities or their access to the
community, think again. the articles below describe the institutional
attitudes at work.
kelly
Electric EDGE
Web Edition of
The Ragged Edge
March/April 1998
_________________________________________________________________
Cover story Cover story Cover story
__________________________________________________________
The Department of Justice's Disability Rights Section avoids enforcing
disability laws, says Mouth magazine in a special investigative
issue published days before Ragged Edge went to press.
__________________________________________________________
Bill Lann Lee, Acting Director of the Civil Rights Division of the
U.S. Department of Justice, met on January 30 with a few dozen
disability leaders to discuss issues pertaining to enforcement of
disability rights laws, including the Americans with Disabilities Act
and the Civil Rights of Institutionalized Persons Act.
Sources say the meeting was called, at least in part, in response to a
report published by Mouth magazine in its March issue charging a lack
of interest in enforcing laws or handling complaints.
A law so fragile
you don't dare enforce it
for fear of losing it
is no law at all
One participant made the point that enforcement of the ADA could not
be "softened to avoid backlash." It would be "a shame if technical
assistance rather than litigation were the legacy" of the Disability
Rights Section, another pointed out.
One of the issues that has troubled Mouth is the perception that "the
freedom of our people is not on the Civil Rights Division's agenda,"
as Mouth Editor Lucy Gwin wrote to Lee in a letter following the
meeting.
But others attending the meeting were cheered that Lee seemed
genuinely interested in the issues ("he took copious notes," one
said.). He appeared at certain points in the one-hour meeting to be
learning of many disability rights issues for the first time - a fact
that, if true, said sources, would not bode well for counsel Liz
Savage, whose job it is to convey the concerns of the disability
community to the Civil Rights Division.
Lee at times appeared to understand the issues better than longtime
staffers - particularly the issue of nursing home "incarcerations,"
said one source.
When a Section staffer responded to a question about what the Division
was doing to "free the 2.4 million Americans with disabilities
imprisoned within segregated institutions" by explaining that the
Special Litigation Unit responsible for enforcing CRIPA was continuing
to send out Letters of Findings to various state institutions about
violations, Lee reportedly pointed out to the staffer that the
questioner was not talking about state-run institutions but "about the
other 95 percent" - i.e., privately run facilities and nursing homes.
It was the assessment of one source at the meeting that Lee "is not on
our page, but not far off."
Follow-up meetings will reportedly be scheduled on specific issues.
But what will come of any of this discussion remains unclear.
__________________________________________________________
Mouth, which calls itself "The voice of the Disability Nation,"
reports in a 36-page section on "Justice Undone" that "most of
the Department's disability rights attorneys don't even know
much about disability - the difference between a quad and a
para, for example."
That ignorance, says Mouth, carries over into their understanding of
what the laws mean. Or how important it is that they be
enforced.
"Any new law that you have, if you don't start enforcement hard and
heavy right off the bat, people will assume that you're not really
going to do anything."
- source quoted in Mouth
The U. S. Department of Justice's Disability Rights Section is well
funded and well staffed. It has a budget of nearly $10 million a year.
Yet its attorneys do not, for the most part, have disability rights
backgrounds or experience. Few of them have disabilities. Charged with
enforcing the Americans with Disabilities Act and other disability
rights statutes, it has filed few lawsuits, focusing instead on
mediation and negotiated settlements. And its own offices are ridden
with architectural and communications barriers significant enough to
themselves engender an ADA lawsuit. These are the findings that
emerged from the investigative report, "Justice Undone,"in the current
isse of Mouth magazine.
Mouth''s report was based on interviews with a number of named and
unnamed sources within the Department, including former disability
rights section investigator and longtime disability rights activist
Sharon Mistler, now retired, and former Department attorney Sara
Kaltenborn. Mouth's report follows that magazine's emphasis on the
interview: Interviews with Kaltenborn, Mistler, Section Chief John
Wodatch, Department liaison Liz Savage and disability rights attorney
Steve Gold.
Sources inside and outside the Department of Justice who complained to
Mouth were angriest that the federal agency simply failed to enforce
disability rights laws. Not just the Americans with Disabilities Act,
but Section 504 of the Rehab Act and the 1980 Civil Rights of
Institutionalized Persons Act (CRIPA.)
"The ADA and CRIPA and the Rehab Act are as real as any other laws on
the nation's books," wrote Lucy Gwin, editor of Mouth. "Congress gave
responsibility for enforcing those laws . . . primarily to the U.S.
Department of Justice. The Department is the big gun in our battle for
liberty, equality, justice. But this big gun is, for the most part,
silent."
Enforcement wimps
"When historians look at the disability movement from 1973 to 2003,
the most shocking thing will be how the federal government
totally abdicated its responsibility," attorney Steve Gold told
Mouth. Gold is considered by disability activists to be one of
the premiere disability rights lawyers in the U.S. He has filed
lawsuits for ADAPT; he filed the brief with Not Dead Yet and
ADAPT quoted in last June's Supreme Court decision against
assisted suicide. In his Helen L. case, the court ruled that
under the ADA, a person could not be kept against her will in a
nursing home; she must be offered services in the community - a
case activists consider a landmark in the struggle to get
attendant services.
"The Department should be bringing landmark disability rights cases,"
Kaltenborn told Mouth. "It doesn't use its big guns." Indeed. In the 7
years following the ADA, the Department of Justice has filed, on its
own initiative, exactly three lawsuits:
U.S. v. Illinois, filed in December, 1993 concerned "firefighters and
police officers with disabilities denied admission to pension funds."
A consent decree was entered in August, 1995.
U.S. v. Mordant, filed Oct. 4, 1993, concerned a dentist who refused
to treat persons who were HIV positive. The court denied a motion to
dismiss; the two whom the dentist had refused to treat ultimately
received $60,000 each in damages.
U.S. V. Ellerbe Becket, filed just last fall, suing the firm "for
designs of sports facilities without providing wheelchair seating
locations with lines of sight over standing spectators."
"Most of what has happened has been settlements," Disability Rights
Section Chief John Wodatch conceded in an interview with Ragged Edge.
The Department had no choice, he insisted: an Executive Order required
them "to try to get voluntary compliance, to negotiate, before we go
to court."
Executive Order 12778, issued by Bush in 1991, and Executive Order
12988, issued by Clinton in 1996, "applies to everything the
Department of Justice does: race, color, national origin, sex," said
Wodatch. "We can't go into court until we've made every effort to
settle something voluntarily."
The reason there are more lawsuits under other civil rights laws, he
said, was that "in the race area right now, people don't settle.
"In our area, people are - well, I have a variety of explanations,
some good, some bad ," he said. "We show up and people say, 'Oh,
that's what this law means! We didn't understand! We'll do what you
tell us!' when the truth is that they knew what it meant; they just
didn't think they'd get caught. Once they get caught, they settle.
"That's not always the case," he went on, "and we have had some
litigation. We've brought, since we've been in existence, probably
about 100 cases."
Yes, but. As it turns out, all but three were cases which someone else
filed first - the Department of Justice entered as an "amicus" or
""intervenor," after someone else had initiated the suit.
The Justice Department can bring lawsuits on their own. Why they file
so few under the ADA remains somewhat of a mystery.
A number of sources Ragged Edge talked to said that the Department had
to be pressed hard to enter some cases at all. The Minneapolis- based
architectural firm Ellerbe Becket - one of the three cases in which
the Department initiated a lawsuit - was sued first by the Paralyzed
Veterans of America for failing to build sports stadiums with seating
so people in wheelchairs could see the action on the field. Shortly
thereafter, the Department filed its own suit against the firm.
Kaltenborn told Mouth she thought that the reason the Department
didn't push things was "fear." "I think the [Department's] enforcement
policy on disability rights is this: You make a damn nuisance of
yourself, bothering little people who have no real power to fight back
and no real interest in violating the law. And that generates
statistics for your Status Reports [quarterly publications issued by
the Department]. You don't want to antagonize anybody who has any
power. . . . Anybody who's really blatantly violating the law is not
going to cave in. Therefore you can't go up against them."
The problem with no damages
__________________________________________________________
The ADA came about not after a vocal, visible, angry struggle for
civil rights. It came about because an elite group
thought it should be passed - paternalistically, in other
words. Consequently, there was not equal power in the
passage.
Steve Gold
"The ADA won't even pay for monetary damages for the injury done when
civil rights are violated. That's a humongously big compromise," Steve
Gold told Mouth.
One of the things disabled people (who did not have "equal power") had
to give up was something called "damages." "Damages" in this legal
sense means monetary awards granted to the plaintiff to compensate for
the "pain and suffering" endured by the loss of civil rights.
Civil rights law protecting racial minorities and women provide for
monetary damages to be awarded to the victim of discrimination. There
is no other civil rights statute "where the minority whose civil
rights are violated cannot get damages for that injury," Gold told
Mouth.
Under other civil rights laws, if, for example, the court finds that a
business has discriminated against a black person, that black person
can be awarded "damages" - money to compensate for the "pain and
suffering" of indignities. And, not insignificantly, to pay attorneys.
"If people with disabilities could get compensatory damages when they
sue under the ADA - even if those amounts were minimal, that would
make it worthwhile [for an attorney] to bring the suit," said Gold.
"Then, too, if the defendants knew they would have to pay - not just
to make their store accessible but also to pay damages - they would,
on their own, make their businesses accessible.
"It's as if the ADA is saying, 'If you break the law, the penalty is
that you'll have to obey it.'
"That's not a big penalty."
"If I had to point to one of the flaws in the ADA," Disability Rights
Section Chief John Wodatch said, "it's that it's very hard for people
to get lawyers to take their Title III cases, because of the lack of
compensatory damages. That was a big battle toward the end of the ADA
fight in Congress. In order to get the bill, that was given up.
"Early on, groups had a strategy that they were going to go back to
Congress and ask to amend the ADA to get these compensatory damages in
there, but with Congress now, no one wants to get the law amended,
because they're afraid we'll lose what we've got.
"And I do share that view," said Wodatch. "I want to keep any ADA
amendment out of Congress. Because I think every member is up there
with their knives out."
Only part of the problem can be blamed on the law, though. When the
Department brings an ADA suit, it can exact damages for clients, Gold
told Mouth. In U.S. v. Mordant, the two plantiffs each received
$60,000 in damages. But the Department "files a very limited number of
suits," said Gold.
Wodatch confirmed that the Department did indeed hear threats from
firms like Ellerbe Becket. And those threats, he said, had to be
considered. First the firm had arrogantly argued that architects
weren't covered by the ADA, and filed a motion to simply dismiss the
case. (The motion was denied and the case is proceeding.)
Though Wodatch was at pains to point out that "we can't be too afraid
to enforce the law because then you don't have the law" and that "We
have to make the most of the time we have," he added that this
"doesn't mean you have to be foolish."
Complaints
"There are very few disabled people who have the money to go out and
hire a lawyer," Mistler told Mouth. "No cost - that's the biggest
reason people file [complaints] with Justice."
One of the accusations repeatedly leveled at the Section by disability
advocates is that there's a huge backlog of formal ADA complaints -
"boxes and boxes of them," as one source put it. While Wodatch
insisted that this was no longer the case, he did stress that "We have
been just inundated with complaints.
"We didn't have very good procedures before. We have better procedures
now," he said. Complaints would now be dealt with, said Wodatch,
within 12 weeks.
A 1970 lawsuit settlement (Adams v. Richardson), Kaltenborn told
Mouth, required the Office of Civil rights at HEW (the Department
Disability Rights Section's predecessor) to either resolve a complaint
or issue a "letter of findings" within 180 days of receipt.
Ironically, this effort to force accountability has proved a stumbling
block to enforcement . It created "an enormous workload of little,
piddly cases," said Kaltenborn. And "the attitude developed that 'if
you don't have a complaint, you can't do anything about it.'"
According to Kaltenborn, the Disability Rights Section has that same
mindset.
"You'd read an article in the paper [about some disability rights
violation] and say, 'this is a great case. We ought to go after this.'
And the answer would be, 'No, we can't. We haven't got a complaint."
In fact, the Section does not have to receive a complaint first in
order to pursue wrongdoing. It can initiate a "compliance review" on
its own, said Wodatch. And this can lead to a lawsuit. But, he said,
do too many of these, and people will complain that the Section isn't
handling enough complaints.
We got 6,000 pieces of mail last year that we had to go through and
decide whether they were complaints or not." The figure Wodatch gave,
was, no doubt, supposed to show the burden of an excessive number of
complaints. In fact, this breaks down to fewer than 30 pieces of mail
a day. When one considers that there are easily thousands of access
illegalities in any major city today, thirty complaints a day is
hardly a drop in the bucket.
In fact, most disabled people do not file complaints. And sending a
complaint to the Department does not mean that the Department will
file suit - or even investigate.
A reluctance to get involved?
When asked by Mouth to provide "examples of successful ADA settlements
in which the DOJ was involved," Liz Savage cited one involving Mike
Auberger, a national organizer for ADAPT, who had a complaint against
the Barrolo Grill.
When Mouth contacted Auberger, he told them that at first it seemed
DOJ wasn't interested in pursuing the matter. "We twisted a lot of
arms [at DOJ] - they weren't open initially, but they did it. I
suspect they knew that there was a potential for us biting them if
they didn't take the case," he added.
The case, said Auberger, "went on for about 2 years." The restaurant
owner ended up settling, Auberger said. But DOJ "pushed him hard,"
Auberger told Mouth. "They made him make everything accessible."
Since that case, though, it seems DOJ has been decidedly cool to
Auberger. He told Mouth, "Since then it's been hard to get the DOJ to
take anything on. We've filed over 100 complaints with them since
then. They haven't done anything on any of them."
Kaltenborn told Mouth that "While people may want to have their
complaints processed, I'm sure they would prefer more effective
enforcement tactics."
An important reason for the Department of Justice to file lawsuits,
Mistler told Mouth, was "to show pattern and practice." "For instance,
if somebody filed a complaint against a hotel in North Carolina, there
may be other complaints against that hotel chain in other parts of the
United States," Mistler explained. "It's more significant if you can
go to that chain and say, 'we've had x number of complaints against
you.' "
The Department, with its access to numerous complaints about access
violations all across the country, is in a prime position to do this
very thing. "And the government has really beefed up the staffing at
Justice," says Mistler. "You have plenty of lawyers who can do that.
"But they don't," said Mistler. "For the most part, they don't."
According to figures furnished by the Department of Justice, Mouth
reported, the Disability Rights Section funding of ADA enforcement
doubled - from $2.2 million in 1991 to $4.6 million in 1992; then
nearly doubled again in 1993, to $8 million. In 1997, the budget was
$9,253,000.
"It hasn't increased in the past two years, but I think it's close to
around $10 million a year. That's pretty good, given the budget
climate we have," Wodatch agreed. Though Congress hasn't approved
budget increases the past 2 years, Wodatch said theirs was "one of the
biggest sections in the Civil Rights Division now, in terms of
personnel and budget both." There are 85 people in the Section,
Wodatch said; of those, 24 were staff attorneys. And in January
Clinton once again proposed more funds for enforcement.
The Republican takeover of Congress changed things, even in the
disability community.
Disability Rights Section
Chief John Wodatch
"People were afraid of a "backlash," Wodatch said. "There's a constant
worry that someone's going to try to repeal part of the ADA. I
hope that's unrealistic, that fear. I think the coalition of
local grassroots disability rights groups that got the law
there can keep it there. But it takes work to do that; and I
think people are worried about that."
The Office on the Americans with Disabilities Act in the Civil Rights
Division of the U.S. Department of Justice was formed in 1992,
combining work that had been done in various other sections of
the Department, and incorporating previous offices doing work
on Section 504. John Wodatch headed this office. In 1993, it
became the Public Access Section; in 1995 that name was changed
to its current name, the Disability Rights Section. John
Wodatch is Chief of that Section. Wodatch, a Georgetown law
graduate, had worked for the U.S. Department of Health and
Human Services on 504. He now oversees an office of over 80 -
one of the biggest Sections at the Department.
Mouth reports, "What you have to understand about [John] Wodatch is
that he was the man on Section 504 from the beginning." Section
504 was the first civil rights provision for disabled people,
part of the 1973 Rehab Act.
Wodatch, a former Department of Justice employee told Mouth, "has
always been the primary guy on 504." As Mouth pointed out,
Wodatch was the attorney for the U.S. Department of Heath,
Education and Welfare back in the mid-70s who took HEW's side
when Jim Cherry sued to get the regulations promulgated on the
ADA. Cherry v. Matthews is an important part of disability
rights history. Matthews was the head of HEW, and Wodatch,
Mouth points out, was the HEW attorney. "Wodatch, then, fought
the implementation of 504. When he lost that fight, he was
given responsibility for implementing it."
"To this day," said Mouth, Wodatch "is the one who must approve all
504 regulations and enforce them for the Department."
"If he'd spent the last 20 years actually seeing that 504 was
enforced," said the source, "courthouses and colleges and
social services and prisons and hospitals and public schools -
anybody getting federal money - would be accessible today.
Think about it. Twenty years.
In 1980, the Department of Justice took over 504 enforcement and
Wodatch moved with it. "If you ask me," the informant told
Mouth, "that's the future of the ADA. If it's in John's hands,
it doesn't have a prayer."
They just don't get it
But most of the staff is non-disabled. Mouth reported one source at
the Department as saying, "you watch a 15-person management
team meeting breaking up, and one of the people coming out of
that door has a [visible] disability." Wodatch, who said he was
"aware of the concern," said that in the seven management
positions "there's one person with a disability."
The Department, Mouth reported, had done "no outreach to get disabled
people on the enforcement staff." Lawyers Mistler had to interact
with, she told Mouth, "had no idea . . . that there are [different]
types of learning disabilities and therefore different types of
accommodation, depending on the disability. Same for blindness, and
varying degrees of hearing. They didn't even know this, and they
didn't have to go through any training to learn it. " Mistler said
that when she questioned this, she was told that "they learn by doing
the job."
"Some of them have worked in disability rights for 20 years," Mistler
said, "and they still don't get it."
Wodatch admitted that, although "early on we did a lot of that; we
sent our new attorneys to DREDF's trainings - almost all of them" - in
the years after 1994 there had been "not much" disability training
whatsoever.
"The Disability Rights Section has a lot of money and a lot of
people," Mistler told Mouth. "What they don't have is a consciousness
of what is important to disabled people."
DOJ slow to enforce CRIPA, too
The Department's enforcement of the 1980 Civil Rights of
Institutionalized Persons Act (CRIPA) has come under fire from
a number of People First groups. Dissatisfaction with the
Department's enforcement efforts, reports Mouth, resulted in
Congressional investigations in 1983 and 1985. In a 1984 issue
of the Nebraska Law Review, Robert Dinerstein wrote that "as a
result of . . . its utter failure to enforce CRIPA, The
Department of Justice has manifestly failed to extend to
institutionalized disabled persons the rights that are properly
theirs." John Kip Cornwell, writing in the November, 1987 Yale
Law Review, leveled similar charges.
The criticisms are still valid today, Mary Hayden, Ph.D., wrote in
Mouth. Hayden, a Director of Research at the Research and Training
Center on Residential Services and Community Living at the University
of Minnesota, charged that the Department "avoids litigation and
relies too much on conciliation."
The Department, she wrote, "shows such solicitousness for the
prerogatives of state officials or parents who support
institutionalization that in some cases [it] has in fact failed to
protect the rights of people in institutions."
In 1987 and again in 1990, Mouth reports, the Department "formally
advised Pennsylvania officials of 'deficient conditions' at Ebensberg
Center," an institution.
"Following these notices, DOJ officials met and corresponded
repeatedly with the state to negotiate . . . ""Five years later, in
1992, Justice finally sued because of the "chronic failure of
Pennsylvania officials to agree to necessary improvements," according
to a letter from then Assistant Attorney General for Civil Rights
Deval Patrick.
Patrick said in his letter that evidence had showed that "Ebensberg
residents has been subjected to preventable deaths and repeated and
preventable devastating injuries, including loss of sight, gangrene, .
. . Residents have been found covered with ants. . . . A resident was
found with an infestation of maggots in her ear." Yet, Mouth reported,
"it took the Department five years to file suit." According to Mouth,
Liz Savage mistakenly believed that the case tried by Steve Gold
(called Helen L.) was a case that had been tried under CRIPA, not the
ADA. In fact, two federal courts used the ADA to rule that a state
could not force a person to remain in a nursing home who wanted to
live in the community.
When Mistler, an investigator, noted that a case should be referred to
the Architectural and Transportation Barriers Compliance Board -
because a federal building was involved - "my supervisor," she told
Mouth, "sent back the intake form with red marks all over it: 'Who in
the world is the Architectural and Transportation Barriers Compliance
Board and why in the world would we want to send something to them?'"
"We had a wonderful case against a major bank in Missouri," she
continued. "They were putting in hundreds of new ATMs and they were
doing it wrong."
"The Disability and Business Technical Assistance Center in Missouri
caught it and couldn't convince the bank to do it right, said Mistler.
Then somebody filed a complaint with the Department
"It was perfect timing," said Mistler. "A perfect case. The ATMs had
not yet gone in; it was going to affect a great number of people; it
was one of the biggest banks in the region."
The investigative unit where Mistler worked started to work on the
complaint, she said, but the Department lawyer assigned to the case
"there again, didn't understand the significance of ATMs" to disabled
people. By the time the Department finally got around to the case, she
said, "the bank had already installed those ATMs. They had never even
received a letter from Justice" suggesting there might be a problem.
"Not even a call."
But "the premiere person in the [Civil Rights] Division running
disability policy is a person with a disability," Wodatch pointed out.
This is Liz Savage, who Wodatch called "the counselor to [Acting Asst.
Attorney General for Civil Rights] Bill Lann Lee for disability
policy." Savage, who was involved with passage of the ADA, is referred
to as the "disability community liaison." Her presence, activists
charged in Mouth, hasn't seemed to help enforcement one whit.
Greyhound
According to Mouth's report, lawyers at the Department have received
Title III complaints about Greyhound for years. One attorney
working on a complaint, a source told Mouth, couldn't
understand why the Department had the complaint. "Supposedly
people are having trouble with Greyhound. What's the issue? I
don't even know why we have it," the attorney is reported to
have said suggesting that it be sent to the Department of
Transportation.
Wodatch says the Department now has "investigations open against
Greyhound on the issue of facilities that they stop at and use being
inaccessible, and on drivers not providing assistance in boarding and
disembarking." Wodatch calls the investigation "very important" and
hopes that "within the next six months or so, something can be
resolved.
"We are going to negotiate with them, says Wodatch. "Negotiation
doesn't always mean we won't file suit."
Mediation
Mistler told Mouth, "High up on the intake form is a question that
says, 'can this be referred to mediation?'
Mediation - formally called "Alternative Dispute Resolution" - is, as
Wodatch put it, the "rising new star" in legal circles. The Section
got a grant from the Key Bridge Foundation to refer cases to mediation
- because, says Wodatch, "we knew there were a lot of cases we
couldn't get to." But he knew, he said, that "a lot of people with
disabilities think this second-class citizenship."
"There's this push toward mediation," Mistler told Mouth, "so there
won't be a backlash."
"Alternative dispute resolution has its place," Kaltenborn told Mouth.
"But tell me: alternative to what? It's an alternative to law
enforcement.
The business of the Department of Justice, Kaltenborn said, was "law
enforcement." Kaltenborn called alternative dispute resolution "a
total abdication."
No, mediation was "not enforcement," Liz Savage conceded in an
interview with Mouth. She called it "an agreement between the two
parties. . . . For example, a restaurant agrees to . . . install a
ramp. . . . If there's non-compliance, the complainant can come back
to us."
Mediation was "effective," Savage told Mouth, "in 85 percent of the
cases." But Kaltenborn says that mediation allows the Department to
"avoid defining compliance. Instead of saying 'this is readily
achievable and that is not,'" she said, they avoid "having to answer
the hard questions."
"In mediation, each side gives up something," Mistler said. "And
that's really good for the company that's not in compliance with the
ADA, but what is it to the person who's being denied their civil
rights? What are they giving up?"
Mistler told Mouth that from her observation of internal reports, the
Department of Justice did not press mediation as strongly with other
civil rights groups - women and blacks - as it did with disabled
people. And yes, it was true that people could then file complaints or
bring suit themselves. But, said sources, people rarely did that. Nor
did disabled people file suits on their own. Often they couldn't
afford to, and attorneys often wouldn't take the case, because there
was no payment for damages. It is a vicious circle, And the Department
of Justice, says Mouth, isn't helping.
There was one thing I have always wanted to do:Make bathrooms off
limits to everybody when they're not accessible for people who use
wheelchairs.
At an office function, a training session, a party - you just lock the
bathroom door to everybody. That's equality. It's easy and
cheap. And it's a real learning experience.
I did this to a boss of mine who didn't get it. She wanted me to go to
a jazz club with her, and I knew the bathroom was upstairs. So
I said, "Okay, but when you have to go to the bathroom, you
leave."
She was horrified. She said, "That means I can't drink!" But she
agreed. . . .
Then she got to that point [where she really had to go] and she wasn't
about to use the inaccessible bathroom, so we left.
We went from club to club in Georgetown, looking for an accessible
bathroom - for my friend, who is not in a wheelchair!
Now she won't even go to a place that isn't accessible.
And that's the kind of thing I wanted to do at Justice.
-- Sharon Mistler
Department offices' access problems
"If the Department were a business we were investigating, one source
told Ragged Edge, "we'd find them in violation of the ADA just
like that. No question."
Perhaps the most troubling - and damaging - accusations against the
Disability Rights Section are that it blatantly fails to provide
access and accommodation in its own offices, to its own staff.
Access violations in Section offices, says Mouth, "ranged from the
storage room that you couldn't even get into, to the Xerox machine in
it, to the mailboxes that were too high, to the fax machines, to the
hallways where you couldn't pass somebody because of boxes blocking
things."
Some staffers made their offices inaccessible, when things could have
easily been handled differently. "They arranged their furniture so you
could not enter their offices, close the door and have a private
conversation."
"The desk where the receptionist sits is too high."
"There is a book where you have to sign up to use the conference room.
It's on a high ledge between the two secretaries in the front office,
and I couldn't get to it."
What I did - with two of the attorneys who do 'get it' - we printed
up, on the computer, between 50 and 60 signs that said, 'THIS IS
INACCESSIBLE'. And we posted them. The guys who helped me were tall;
they labeled the high-up places I couldn't reach; I labeled lower
places.
We ran out. We should have made more signs.
Sharon Mistler
Wodatch seemed defensive on the accusation about the boxes in the
hall. "We still have some boxes in the halls, although we are making
an effort to get rid of them,"he said. " In terms of accessibility, we
have what the new construction standards say is the appropriate amount
of turn space" Although, he added, he feels, too, that they shouldn't
be there. As to charges about other access violations in the offices,
he simply responded by saying that "basically it's accessible but it's
by no means perfect."
Access complaints that "have merit" "have been changed or are being
changed," he said. "Sometimes it takes a long time to get them
changed," he added. "The thing we have to work on the most is having
the government systems respond more quickly.
"It's taken a long time to get some changes," he went on. "In the past
year we finally got them to put automatic doors on the restrooms.
"But another part of the government just ordered new computer printers
[for our office] - humongous things that are out of the reach range of
someone in a wheelchair. So what we have done is not assigned those to
any person in a wheelchair."
For a long time, sources charged, the Section had no adequate
sign-language interpreters available.
Wodatch readily admitted the problem: They'd relied on outside firms
to provide interpreting services, he said, and "that proved to be,
first of all, very costly, and very inefficient.
"Because the way the government works, we couldn't just use one
service; we had to use a variety of services," he continued. "And we
would sometimes get interpreters who were less than proficient.
"We had an investigation of Walt Disney World. And you have a meeting
where you have the attorneys there, and the investigator is a person
who is a late-deafened adult, and I could tell she couldn't really
tell what was going on, but we couldn't stop the meeting; we had the
officials from Disney there. It was really very difficult.
"We have a number of deaf employees," he continued, "and we needed
interpreters just for the interactions in the office. If all of a
sudden we had a special meeting called for the next day, or if it was
going to be an evening meeting, we couldn't get an interpreter in that
short a period of time. That created staff frustration."
The Intern's Computer
We had an intern come in last summer; a law student; a fairly severely
disabled kid who needed to have a talking computer. We didn't have one
of those here. We knew around January that he would be coming in [in a
few months], so I sent the request in for the equipment. Now it was
$20,000 worth of equipment for someone who was a summer employee - and
he wasn't even an employee; he was a summer intern. But in my
estimation we had the obligation to do that and cost wasn't - you
know, a limitation- so we put the order in. He came in May; it wasn't
until the middle of July that the equipment was in and working. And so
- we did other things for him, but that's an example of it just took a
long time. Now part of that was a question of, am I making the right
judgment that I should spend that much for someone that's not a
permanent employee, and, in fact, not even an employee?
John Wodatch, Disability Rights Section Chief, Civil Rights
Division, U.S. Department of Justice.
Wodatch said that within the Section, with those things over which he
has control, "I've tried to use every kind of opportunity that the
government provides." He mentioned "job sharing" and "working at home
- which we pioneered for the Division," he added.
"I finally got permission to hire another person, and so now we have
two fulltime interpreters," he said. "I'm glad now that we have hired
our own people. They're here, we're in charge of their time, and it's
cheaper."
Wodatch could not just make decisions to get accessible equipment or
provide accommodations if they cost money, he told us. "I have certain
leeway, but the basic decisions are done Division-wide, not by
Section."
Whether this picture of Wodatch having to beg for access from his own
Department rings true or not, it is a useful symbol. A government
entity unable to even muster up, even within its own walls, a desire
to obey either the letter or the spirit of the rights laws it is
charged with enforcing can hardly be looked to for protection of
rights. Nor, does it seem, that can be much vision emanating from an
office that has taken years, it seems, to figure out that staff
oughtn't to be allowed to arrange office furniture to block access --
or to have on staff people like investigators and attorneys and
support staff who have as part of their job requirement a working
knowledge of American Sign Language.
As Mouth's investigative report shows, disabled people really have
very few options open to them for getting satisfaction under the ADA.
The attorneys housed in the Disability Rights Section of the
Department of Justice who should be enforcing the law seem less than
committed to it, Mouth's report shows. Disabled people don't have
these attorneys pushing their rights very hard. On their own, most
disabled people can't afford attorneys, and the law itself provides no
money for attorneys' fees.
They can file a complaint with the Department, but chances are it
won't get very far, either.
But there is another route, Mouth reports: Disabled people can sue ADA
lawbreakers on their own. Without an attorney. This is called a "pro
se" lawsuit (from the Latin meaning "for oneself").
"We have a form for them to do it themselves," said Steve Gold. "They
can file their own lawsuit. This was done solely because there are no
lawyers who want these cases."
ADAPT activist Mike Auberger, whose 100 complaints the Department has
reportedly not yet touched, is, Mouth reports, doing just that.
BLOODBATH!
Disability rights are trivialized by most people. They are not
considered civil rights. The fact that a person using a wheelchair
cannot get up two steps into a store - or cannot get on a bus, or that
movies aren't captioned - is not looked at as a violation of that
person's civil rights.
Can you imagine what this country would have been like seven
years after [passage of the] 1964 Civil Rights Act if we
still had bathrooms marked "whites only" and "colored
only"? When Congress passed a law in 1964 saying [racial]
access must be equal - why, if restaurants and bus
stations had continued to keep separate bathrooms and
separate water fountains, there would have been a
bloodbath in this country! -- Steve Gold
*************************
Sept./Oct.
1998
The Department of Justice and Us
Articles last spring in Mouth and Ragged Edge reported on critics
who say the U.S. Department of Justice, the agency empowered to
enforce the Americans with Disabilities Act, follows a policy of
compromise and negotiation rather than active litigation.
This month, Ragged Edge readers Ed and Toni Eames report their
experiences with the Department.
by Ed and Toni Eames
Ed and Toni Eames are longtime disability activists and members of
the National Federation of the Blind.
Based on our experiences with the Department of Justice, we can
only agree with reports that the Department shows a basic lack of
concern with the real issues of the disabled community and the need
to implement the ADA.
For an agency designated to enforce the ADA, the Department of
Justice seems to share many of the ableist attitudes of the general
public. As articles have reported, the agency doesn't accommodate
the disability-related needs of its employees; few higher level
supervisors are disabled.
The agency's attitudes have also become clear to us in several ADA
issues in which we've been directly involved.
Prisoners' rights
In 1990, Willie Lee Johnson, a fellow member of the National
Federation of the Blind of Fresno, shot and killed an unwelcome
guest who refused to move out of his house. Johnson, who's legally
blind, was jailed, tried, found guilty and sentenced (15 years to
life). After sentencing he was moved to New Folsom Prison, a
maximum security facility near Sacramento. Although never in
trouble with legal authorities before, he was considered a security
risk because he listed his occupation as locksmith!
Like many other prisoners, Johnson wanted to file appeals against
what he believed was a gross miscarriage of justice. He wanted
access to the law library at the prison to obtain legal
information. Because of his blindness, Johnson was unable to read
print unless it was enlarged. He is also a braille reader, but few
law books are available in this medium. When Johnson requested
accommodation through the provision of enlarging equipment or
readers, the librarian and warden refused to consider the request.
At Johnson's request, we contacted a representative of the
California Department of Corrections, who told us that Johnson had
the same opportunity to use the library as all other prisoners -
and that if, because of his reduced vision, he had difficulty
finding the books he needed, a library assistant could help him
find them! We were taken aback by this absurd notion of reasonable
accommodation and accessibility. How, we asked her, would Johnson
be able to read the material once found? We were told that this was
not an issue of concern to the Dept. of Corrections.
Following this infuriating encounter and with Johnson's blessing,
we contacted the Department of Justice. We were asked to file a
formal complaint under Title Two of the ADA. We did - in January
1992. In addition to lack of access to the law library, we noted
lack of educational and work opportunities for Johnson and other
blind prisoners.
The Department assigned Richard Waters, an investigator in
Washington, DC, to follow up the complaint. In October 1992, after
many phone conversations, Waters visited Vacaville prison where
Johnson had been transferred - it was a medical facility and many
disabled prisoners were housed there. Waters investigated Johnson's
complaints, as well as those of other blind prisoners. During this
inquiry, Johnson was interviewed twice and Waters spoke with 20
other blind prisoners.
After this investigation, Waters met with the warden of Vacaville
and his staff, as well as with the deputy director of the
California Department of Corrections, and his staff. All agreed
there were violations of blind prisoners' rights. Waters was asked
to prepare a statement detailing the results of his investigation
and to make policy and procedural recommendations. The Department
of Corrections said it would await direction from the Department of
Justice.
In January 1993 - a year after the official complaint was filed -
we spoke with Waters about progress. His report was finished, he
said, and the California Department of Corrections was willing to
cooperate in implementing his recommendations.
However, his superiors at the Department of Justice were in no
hurry to settle the matter. We got the impression he was as
frustrated as we were.
Johnson's case received a blow when a class-action suit was brought
against the California Department of Corrections by a group of
physically disabled prisoners and Justice notified us they were
turning Johnson's case over to the lawyers representing the
physically disabled prisoners in that case.
By not pursuing Waters' report and preliminary settlement, the
Department of Justice abandoned a clear-cut example of
discrimination based on blindness which could have been settled and
would have established a precedent for all prisons in this country.
Instead, the issue of whether disabled prisoners are covered by the
ADA dragged on through the courts until this June, when the U.S.
Supreme Court ruled that they were indeed covered under the ADA.
A Justice Department negotiated settlement years ago would have
provided Johnson and other blind inmates access to fundamental
services provided for sighted inmates. Now that's still not
happening (see sidebar).
Car rentals
In April 1992 when we arrived at the Phoenix airport accompanied by
a sighted friend and went to pick up our previously-reserved Dollar
Rent A Car, we ran head-on into one of those unanticipated cases of
rank discrimination. As blind people, we wanted to rent the car on
our credit card and have our friend drive. The clerk at the
counter, even after consulting a supervisor, refused to rent to us.
When we pointed out this was a violation of the ADA, they still
refused to reconsider their position. Fortunately, we were able to
rent a car from Budget which had no such discriminatory policy.
One month later we filed a formal complaint with the Depart-ment of
Justice under Title 3 of the ADA against Dollar Rent A Car. In June
we received acknowledgment of the complaint and a case number. In
August we received a call from the investigator working on the case
giving us her name and phone number. In October we called and were
told the Department had contacted Dollar and the company was
working on the problem.
During this waiting period we tried to rent a car from Enterprise
and ran into the same problem. We filed another formal complaint
with Justice. But this case was given to another investigator at
the agency, rather than the one working on the Dollar case.
What's interesting in dealing with the Department of Justice is
their unwillingness to put anything in writing. Aside from the
acknowledgment of the complaint and the assigning of a case number,
we never heard from them on our Dollar complaint. Fortunately, a
friend caught a report in the news that, according to the
Department of Justice, Dollar Rent A Car would now rent to people
with disabilities having a credit card who could not obtain a
driver's license because of their disability. It seemed we had won.
The Department of Justice hadn't bothered to tell us.
We had not anticipated the vagaries of the federal justice system.
More than a year after settling the Dollar case, the Department
notified us they were dropping the Enterprise complaint.
Enterprise, they said, had agreed to modify its policies to rent to
disabled individuals with credit cards who could not obtain
licenses because of their disabilities - except in those states
prohibiting rentals to anyone not having a valid driver's license.
In California, we have been able to change the regulatory language
to permit rentals to individuals with credit cards unable to
qualify for a license because of a disability; but to get full
compliance from Enterprise, we would have to change existing state
laws being used to continue Enterprise's discriminatory policy.
What we can't understand is why the settlement with Dollar did not
apply to all car rental agencies. And nobody at the Department of
Justice has yet bothered to explain it to us.
Zoo access
In November, 1993 an epileptic woman with a service dog was barred
from bringing her canine assistant into the San Diego Zoo. She
filed a Title III complaint with the Department of Justice. In
California the state civil-rights code mandating nondiscrimination
on the basis of disability specifically permits zoos to deny access
to disabled people accompanied by guide, hearing and service dogs,
based on a number of myths (see sidebar.)
However, zoos are public accommodations, and, under Title III,
disabled people are guaranteed the right to be accompanied by their
assistance dogs in places of public accommodation. And the preamble
to the ADA notes that when state and federal laws conflict,
whichever provides greater protection to the rights of disabled
people should take precedence. To us, board members of IAADP, the
International Association of Assistance Dog Partners, this looked
like an ideal case to test this position.
However, the Department did not seem inclined to litigate. The
action taken on the zoo issue is an excellent example of what might
be thought of as the Department's motto: "Let's negotiate, never
litigate!"
The DOJ lawyer investigating# the complaint asked us to provide him
with background information. Ed wrote to him on in late 1993,
explaining zoo policies and the myths used to deny access. He
explained that we had recently participated in a ceremony in the
aviary at the Fresno, California Zoo; that the zoo director was
there and that birds flying loose were interested in our three
dogs, but did not sustain trauma, injury or death. Ed pointed out
that the aviary at the San Diego Zoo was one of the areas from
which zoo officials wanted to exclude us.
But sure enough, when the settlement was made, the aviary, as well
as several other areas of the zoo, were declared off-limits to
disabled people with assistance dogs.
In the world of those partnered with assistance dogs, zoos and
hospitals remain a fuzzy area in which many of the issues noted in
Ed's letter still rage - recently, DOJ produced a document on
"Frequently Asked Questions About Service Animals" - yet issues
pertaining to access in zoos and hospitals were not addressed.
We learned that Marc Dubin, the Department lawyer involved in the
San Diego zoo case, was going to do a three-hour presentation on
the ADA at the joint ADI\IAADP conference in July 1994, we thought
this would be a great opportunity to learn more about cases
involving assistance dogs (or what the Department refers to as
"service animals"). ADI, Assistance Dogs International, is an
organization of programs training guide, hearing and service dogs,
and IAADP, our cross-disability consumer advocacy organization of
disabled people partnered with guide, hearing and service dogs.
But Dubin and his associate from the Department only did a standard
presentation on the ADA and its various titles. When we asked about
the number of complaints filed with the Department involving
assistance dogs, Dubin replied that he had "no idea." To us, it
seemed inconceivable that the Department would send a
representative to a conference of providers, trainers and handlers
of assistance dogs who could give participants no information about
the Department's activities in that area. But that's exactly what
happened
A month into 1998, Ed wrote to Liz Savage, Counsel to the Assistant
Attorney General for Civil Rights and Disability Community Liaison,
in his position as president of IAADP to discuss the Department's
response to assistance dog issues. IAADP and ADI have developed a
joint committee to approach the Department, but to no avail.
Despite Ed's letter, and the several subsequent voicemail messages
he left, he's received no response to date.
______________________________________________________________
Willie Johnson still gets no accommodation
Yes, the U. S. Supreme Court has ruled that U.S. prisons - and
prisoners - are covered under the ADA. Has that made a difference
for blind prisoner Willie Johnson? No.
Johnson is still being denied materials in braille, Eames said as
this issue was going to press. The prison officials' rationale this
time seems to be "if we can't read it, and we can't tell what it
is, then he can't have it," says Eames - an attitude that Eames
says sounds like it violates Johnson's First Amendment rights, not
to mention the ADA.
Isn't this illegal? No doubt. But the Justice Department isn't
stopping them. So prison officials will continue to discriminate.
Supreme Court or no.
__________________________________________________________
Thanks but no thanks
At its convention this summer, members of the National Federation of
the Blind voted to "opt out" of a setlement brokered by the
Department of Justice with the state of Hawaii over bringing
guide dogs into the state. While the settlement would allow
blind people to go around Hawaii with their guide dogs rather
than quarantining the dogs for 30 days (as had been required
before the suit), dog owners would still not have true freedom
to travel. They'd have to agree to stay in certain hotels. They
can't go into anyone's home with their dog if the hosts have
pets. Thanks but no thanks, said NFB members.
The case was filed in 1993 against the state of Hawaii by Guide Dog
Users Inc, a group affilated with the American Council of the
Blind, calling the quarantine discriminatory. A federal judge in
Hawaii, said Eames, "summarily dismissed" the suit, saying that
since Hawaii was a rabies-free state, "state interest" superceded
the ADA.
No it doesn't, said the 9th Circuit Court of Appeals, saying that
the case had to be tried as an ADA case. (Along the way, the case
had turned into a class-action suit for all guide-dog users.)
In stepped the DOJ, said Eames, "offering to help." They "brokered
this horrible, horrible settlement," said Eames, who believes that
the suit should have been won by the litigants.
______________________________________________________________
Thurmond targets ADA:
Bill seeks to exempt prisons
Warning that prisoners would "file an endless number of lawsuits
demanding special privileges" if the law weren't changed, Sen.
Strom Thurmond (R.-SC), joined by fellow reactionary Sen. Jesse
Helms (R. - NC) introduced a bill in July to amend the Americans
with Disabilities Act (and the Rehabilitation Act of 1973) to
exempt state and local agencies operating prisons. The U. S.
Supreme Court ruled in June that prisons were covered by the ADA.
Thurmond insists the ADA has had "unintended consequences."
Managing prisons is " an activity traditionally reserved to the
states," he says.
The National Council on Independent Living see the bill, S 2266, as
an attempt to carve out "less worthy" groups from the ADA's
protections. It has been referred to the Senate Committee on Labor
and Human Resources.
end of file
VICUG-L ARCHIVES http://maelstrom.stjohns.edu/archives/vicug-l.html
INDEX of VICUGS http://trfn.clpgh.org/vipace/vicug/vicugs.html
SUBSCRIPTION FORM http://trfn.clpgh.org/vipace/vicug/subscribe.html
|
