REFLECTIONS ON THE AMERICANS WITH DISABILITIES ACT by Kenneth Jernigan No proposed piece of legislation during the past thirty years has created more comment and soul searching among the disabled of this country than the Americans with Disabilities Act. The bill passed the Senate in 1989 and at the time of this writing (early 1990) is awaiting action by the House of Representatives. At first glance it would seem that no disabled American could possibly object to this bill. It would be like opposing motherhood, Santa Claus, and the Easter Bunny--but some do oppose it, and even more have serious reservations about it in its present form--that is, the form in which it passed the Senate and is now being considered by the House. At its 1989 convention in Denver, Colorado, the National Federation of the Blind passed a resolution declaring that if the bill could not be amended to cure its weaknesses, it should be opposed. In the circumstances it seems desirable to examine the proposed law and consider its possible advantages and drawbacks. Obviously it is not easy to oppose such legislation, for the enthusiasm of those who favor it is at such a fever pitch that any cautionary comments (regardless of how sound or constructive) are likely to be taken out of context, distorted, or twisted to convey meanings they were never intended to have. Nevertheless, this legislation is so far-reaching and all-inclusive that it cannot be allowed to go forward without analysis--so here is how we see it, how we think it affects the blind as it is currently written, and how we think it should (at a minimum) be amended. Purpose The bill as it passed the Senate says that the purpose of the Americans with Disabilities Act is "To establish a clear and comprehensive prohibition of discrimination on the basis of disability." The proponents of the legislation say that it will give to qualified individuals with disabilities the right to equal participation in employment, public accommodations, transportation, and other activities. They say that it will do this by mandating special accommodations for the disabled. But some of us who have doubts about the requirements of the Act feel that by eliminating certain problems and discriminations it may actually create others. Particularly, we are concerned that the bill is so written that the disabled may (whether they need them or not) be required to accept the special accommodations mandated by the bill and (regardless of their abilities, desires, or circumstances) be prevented from using the same facilities and services that are available to others. Background on the Americans with Disabilities Act and its Comparison with Existing Civil Rights Laws The Americans with Disabilities Act has been proposed to prohibit discrimination against persons with disabilities. Under the bill it would be discriminatory to deny disabled persons access to (1) employment; (2) services, programs, and benefits of state and local governments (including public transportation); (3) public accommodations and transportation provided by private entities; and (4) telecommunications services. Section 504 of the Rehabilitation Act of 1973 was the first federal nondiscrimination statute of general applicability to "handicapped individuals." The law itself originally consisted of one sentence, specifying that recipients of federal aid could not subject otherwise qualified handicapped individuals to discrimination under any program or activity receiving or benefiting from federal financial assistance. The Americans with Disabilities Act significantly extends this requirement and vastly expands its reach. Following the language and concepts of the section 504 regulations, the Americans with Disabilities Act identifies physical barriers to the disabled as discriminatory. The premise of the bill is that limits on physical access lead to restricted participation or outright denial of opportunity. Under the bill, opportunities are to be barrier free. A legal standard of what is called "accommodated participation" is used as the rule of thumb for nondiscrimination. Physical accessibility requires modifications to architectural design features. Changes in programs in order to accommodate them to the physical limitations of the disabled are also required. The premise of the section 504 regulations has been that the standard for prohibiting discrimination against disabled persons differs substantively from the standard used in the Civil Rights Act of 1964. The standard used in that Act (the Civil Rights standard) is that race, sex, national origin, and religion must not stand in the way of equal opportunity. "Equal participation" must be afforded to everyone regardless of differing traits. The Americans with Disabilities Act uses the accommodated participation standard first developed with the section 504 regulations. Rather than being disregarded, disability must be considered. Equal opportunity as contemplated in the Americans with Disabilities Act means participation, with or without modifications. Failure to accommodate programs to the disabled (or failure to provide services that are separate or different from the services provided to others) is expected to result in a denial of opportunity and is, therefore, to be considered discriminatory. The Americans with Disabilities Act does not outwardly reject the equal participation standard of the Civil Rights Act, but in emphasis the bill strongly favors accommodation--modifying buildings, buses, airplanes, and the environment in general--as well as the establishment of separate programs. In some instances (with respect to some disabilities) it may be reasonable to argue that accommodations must be made to prevent discrimination. In other instances (such as in the case of discrimination against the blind) so-called "accommodations" may often themselves be discriminatory. This fact must be considered in the further development of the Americans with Disabilities Act. Otherwise, the Act itself could become a source of unintentional discrimination against some persons with disabilities. Nature of Discrimination on Grounds of Blindness Blindness is unquestionably a disability as that term is defined in the Americans with Disabilities Act. This inclusion implies that discrimination against the blind arises primarily from lack of physical access--or lack of special "accommodations." The implication is not only incorrect; it is dangerously incorrect. Structural characteristics do not ordinarily prevent blind persons from having full and equal access to any buildings or facilities used by anybody else. Blind persons are customarily able to use programs, services, and facilities without modification. Discrimination against the blind comes from the false assumption that sight is essential for successful performance of most tasks. Blindness is the inability to see, but it is not generally disabling. Alternative techniques used by blind persons work as well, and as efficiently, as visual techniques used by sighted persons. It is, therefore, discriminatory to require the blind to be treated differently from the sighted when such treatment is not warranted. Unwanted accommodations for the blind discriminate by falsely portraying the blind as limited in ways that they are not. Increased attention to civil rights for the disabled has led to misplaced and discriminatory uses of accommodation. One example is offering a wheelchair to assist a blind person in moving through an airport or similar facility. If the blind person rejects the offer, preferring to walk, it is not unusual for airport officials to try to force the blind person to use the wheelchair. What starts as an attempted "accommodation" is now discrimination. Another example is insisting that all blind people must sit at the front of public buses because those seats are designated for the elderly and handicapped. In either example, the blind person who can walk and move as well as anybody else is made to appear as limited. The person may, indeed, be permitted to have access to the building or the bus, but the access is certainly on discriminatory terms for that blind individual or for the blind as a class. The experience of the blind with Section 504 should be instructive. Programs are now established to, as the terminology has it, "take care of" the needs of the blind. In the bus example, Section 504 clearly prohibits denying service to the blind. It does not clearly prohibit the bus driver from insisting that a blind person sit in one of the front seats designated for the elderly and handicapped. Some may regard disputes about seating as quibbling, but Rosa Parks and others brought the entire civil rights movement to a national focus by exactly this type of issue. Section 504 requires that disabled persons be accommodated on the bus. If blind persons who are capable of sitting anywhere are forced to accept seating accommodations and use the seats designated for the elderly and handicapped, they are being subjected to arbitrary and unreasonable restrictions. It is exactly this type of situation, resulting from Section 504, that the blind find objectionable. We are expected (in fact, often "required") to act as if we are disabled in ways that we are not. Accepting the blind on terms of full equality is the proper policy of nondiscrimination. Conversely, it is discriminatory to assume that participation for the blind is made possible only by means of what are called "accommodations." When that assumption is applied, the result is discrimination--treating the blind as disabled in ways that they are not. Need for a Participation without Modification Amendment In the Americans with Disabilities Act Serious problems of unintentional (but very real) discrimination arise from the "accommodated participation" standard in the Americans with Disabilities Act. As with women and minorities protected by the Civil Rights Act of 1964, the most appropriate legal standard for the blind and others is "equal participation." This means that the terms and conditions of participation are applicable alike to all persons. Accommodated participation means that modifications must be made so that persons with disabilities will be given an opportunity. "Disability" under the Americans with Disabilities Act is treated as a generic condition. This leads to inappropriate use of accommodated participation. The fact is that the blind have the unique condition of not seeing, which is not generally disabling. Discrimination occurs against the blind when blindness is treated as generally disabling. The experience of the blind with the airlines exemplifies the problem. The advent of federal civil rights laws for handicapped individuals brought pressure on commercial airlines to serve persons with disabilities. Physical barriers of aircraft and equipment had prevented service in some instances--particularly, to those using wheelchairs. This was never a problem for the blind. In the case of the blind, air transportation was almost always provided on essentially nondiscriminatory terms. We bought our ticket, got on the plane, sat where we chose, left the plane at our destination, and went about our business like anybody else. Certainly (in contrast to the situation of some disabled persons) there were no policies to deny or restrict service to the blind. Blindness was not regarded as a disability for purposes of air travel. The pressure brought on commercial airlines by persons with certain disabilities (particularly, those with orthopedic problems) may have been necessary, but the effect it has had on blind persons has been a civil rights disaster. When the airlines and the Federal Aviation Administration began to plan ways of, as the term is used, "accommodating" the handicapped in order to (again, as the jargon has it) "serve" them, they included the blind in the general category. All of a sudden it became unacceptable to think of the blind as not disabled for purposes of air travel. So the blind were made to be disabled--and restrictions, thought to be appropriate for the disabled, have been wrongfully imposed on the blind ever since. This policy has now been pursued (first condescendingly and then when the blind objected, aggressively and with hostility) by the airlines. Ironically, the net effect of the civil rights laws for the disabled has been to place new and unwarranted restrictions on the blind in air travel. This is the result of the generic disability approach in setting the standard for nondiscrimination. Relying on federal law, the airlines are now attempting to make the blind disabled in ways that they are not. This and many other examples justify the concern of the blind that the Americans with Disabilities Act will cause unintentional, massive discrimination. The bill (as introduced and passed by the Senate) presumes that disability (every disability) implies the need for what is called an "accommodated" form of participation. Covered entities will want to comply with the Act by making accommodations, especially those of minimal cost. As with the airline example, the blind will be expected to accept policies which apply to the generic "disability" class, including accommodated participation and the restrictions that necessarily accompany it. The "accommodated participation standard" is perhaps appropriate for many persons with disabilities. This standard may help make their participation possible. For blind persons, however, the accommodation standard incorrectly assumes a degree of inability and directs unwanted and even harmful changes. The individual's true abilities are overshadowed by "accommodated participation," and the changes made become the focus of everyone's attention. It is assumed that the individual could not participate were it not for the "accommodation." To use another example, some people now assume that blind people cannot cross street intersections without special signaling devices. The devices are audible traffic signals which emit a sound (often a bird call) to indicate the changing of the traffic lights. The modification has been promoted by persons who assume that blind people will not know when or where to cross the street if they are not given a special audible cue. But rather than being a form of assistance to the blind, this adaptation becomes (in the minds of most blind persons) a hindrance, falsely presuming that blindness is an impairment to street crossing. The fact is that blind people cross streets by themselves every day without audible traffic signals. We have been doing so ever since cars, street crossings, and traffic lights were invented. The sound of the traffic and the direction of its flow give all the information that is needed. An audible traffic signal adds nothing, and many blind people say that the additional sound only confuses them. Most significantly, this modification implies that the blind cannot cross ordinary streets. In this respect, it is a damaging and false public statement that the blind are disabled in ways that they are not. To give only one example of the damage, potential employers will be less likely to offer jobs to the blind because of the implication of helplessness and the specter of added costs for special modifications and accommodations in these businesses and neighborhoods. It is harmful to blind persons to have accommodations being made for them that falsely imply limitations caused by blindness which do not exist. Opportunities necessarily depend on public understanding and social acceptance. This will be the case with or without the Americans with Disabilities Act. Blind people want to be accepted on terms of equality with the sighted, having the opportunity to succeed or fail on merit and being judged on their ability to perform. This is a proper and realistically achievable objective. Our equality will be blocked, however, if we are faced with a federal law that implies a degree of permanent inequality. Explanation of the Right to Participate Without Modification Amendment The amendment we propose would prohibit discrimination against qualified individuals with disabilities by clarifying each person's right to participate in programs and activities that are not separately established for the disabled or modified for their use. The bill already requires accommodated participation when necessary to give persons with disabilities opportunities that would otherwise be denied. The amendment, entitled "Right to Participate Without Modification" would provide each person with a disability the right to participate in programs and activities that are not separate or different from the programs and activities used by others. It would provide that the existence of separate forms of participation for the disabled may not be used to deny an individual the opportunity to participate in the same programs that others use. The amendment would require that modifications made for persons with disabilities shall not impair the choice of any such person to participate without modification. Despite our resolution at the 1989 NFB convention in Denver in July, which stated that we would oppose the Americans with Disabilities Act unless it could be amended, Congress and the Administration moved forward in steamroller fashion to pass the bill as it was written. When word began to circulate in Washington in mid-November that the National Federation of the Blind meant what it was saying and might actually come out against the Americans with Disabilities Act, a number of the proponents of the bill became concerned. This is where a man named John Wodatch comes into the picture. He is the Deputy Section Chief, Coordination and Review Section, Civil Rights Division, United States Department of Justice. Mr. Wodatch is the Bush Administration's foremost legal expert on disability-related federal civil rights policy. His involvement in this area dates back to the original Section 504 regulations issued by the Office of Civil Rights of the Department of Health, Education, and Welfare. He did most of the staff work in the negotiations, development, and writing of HEW's original 504 regulations, which were published in 1977. By virtue of his background and position, Wodatch has become one of the Bush Administration's key staff level negotiators on issues relating to the Americans with Disabilities Act. After hearing of our potential opposition, Mr. Wodatch called us to attempt to negotiate language for an amendment that we could support. It was at about this same time (just before Thanksgiving) that Congressman Christopher Cox agreed to offer our amendment in the House. Wanting to coordinate his efforts with the Administration, Congressman Cox sent our amendment to John Wodatch. At the time of this writing, Congressman Cox is prepared to offer our amendment--particularly, if it can be negotiated with the Administration first. To this end Mr. Gashel and Mr. Maurer met with White House Staff on January 19, 1990. They felt that the meeting was quite successful and that the likelihood is that an amendment which we can support will be agreed to. Otherwise, we must oppose the bill as vigorously as we can if it is to remain in its present form. But are our concerns exaggerated and overdramatized? For instance, is it really conceivable that if a hotel has set aside one room with a visible fire alarm for the deaf or special markings or devices for the blind that a deaf or blind person would be denied the right to rent any other room in that hotel? Is this not far-fetched and unrealistic? Not at all. John Wodatch sent us the following statement last December, and this is a direct quote: Problem: In a case where a deaf person refuses to take a hotel room with the visible fire alarm system because another room has a better view or is near a friend, is the hotel liable for harm if fire breaks out? Does the statute need some form of assumption of risk doctrine specified? (E.g., language like "provided that the entity providing such service shall not be liable for harm resulting from the refusal to accept such accommodation or modification." This is what Mr. Wodatch said, and much of the discussion which we have had with Congressional and Administration leaders has centered around the point of liability and responsibility. As the bill passed the Senate, it seems likely that many of the old discriminations and stereotypes which we had thought were long behind us will be revived. Hotels may refuse to permit blind persons to rent rooms above the ground floor, claiming that the stairs or elevators would be a hazard. We could be segregated in specially modified rooms and not permitted to have rooms near those traveling with us. We could find ourselves forced by bus drivers to sit in special seats, segregated from family or friends--and all in the name of safety and protecting our civil rights. Moreover, the courts might well use the language of the Americans with Disabilities Act to support these decisions and cause major setbacks in our struggle for equal treatment and enlightened policy. We do not want to hinder the progress of other groups of the disabled, nor do we want to engage in controversy or scare tactics. But we have lived with discrimination and unreasonable treatment, and we do not intend to lose our hard-won gains--even if it be in the name of civil rights. Although it seems unlikely that the Americans with Disabilities Act can do very much to help the blind, we will not oppose it if it can be amended so as not to deprive us of our civil rights, but if it cannot be so amended, we will do anything we can to slow it down and block its passage. This is the only responsible course of action which the blind of this country can adopt. Simply because a thing calls itself civil rights, that does not mean that it is civil rights.