By fortressdayton

The original author of the ADA, a man confined to a wheelchair, lamented what the ADA has become. He said that, had he known what abuses of personal and property rights would take place in the name of the act, he would never have written the Act. How’s that for a commentary on the ADA? Society had a responsibility to TRY to accomodate its less-gifted citizens, but it is not obliged to do so. The ADA is a legal boondoggle used by attorneys to generate lucrative lawsuits. It needs to go away. Look around Dayton and see how this works out: every corner nearly has a sight-impaired plastic plate. How many sight impaired folks walk around Dayton? The cost is criminal. Braille buttons on drive-thru (!) ATMs. Gimme a break. Thye ADA has put more small restaurants out of business than the Mafia and the economy combined. Why does a mom and pop restaurant need a ramp and a handicapped accessible bathroom for EACH sex? Nonsense. Every welfare recipient seems to have a power chair now, so the problem is epidemic. I say, stop over-regulating in the private sector. If I don’t want to spend 200,000 to make my restaurant handicap-accessible, then that should be my decision. If you accomodate one, then you must, by rights accomodate all. Why do we get to bring assistance animals in food service establishments? What happened to hygiene? Oh, that’s right…the blind have more of a right to bring Fido in than I have a right to maintain food safety. BS!

After reading that, I was ready to reply in kind – but didn’t. Other commenters jumped into the fray, renewing my conviction in Justice Oliver Wendell Holmes’s assertion that the best remedy for speech that we hate is not its proscription, but more speech. Read what they wrote.

The libertarian argument (I’ve got mine, and I’ll step on your neck to keep it) advanced by “fortressdayton” reminded me of Rand Paul’s remarks about the Americans with Disabilities Act after his primary election victory last May in Kentucky. His language sounded reasonable compared to “fortressdayton”, but it conveyed the same sense of paternalism and noblesse oblige: the disabled  don’t need burdensome laws to help them, we know what is best for them. Here is what Rand Paul said on NPR:

I think a lot of things could be handled locally. For example, I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who’s handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

Thanks to Ellen Belcher for publishing this piece today on the Dayton Daily News opinion page (PDF) and Matter of Opinion blog.

Disabilities Act Still A Work In Progress

by Mark Willis

This year marks the 20th anniversary of the Americans with Disabilities Act. Twenty years is significant, not because it’s a round number, but rather, because it represents a generation of experience gained since the law was passed.

Many of us who lobbied for the ADA believed at the time that it could take a generation or more, as it had with the Civil Rights Act before it, to fulfill the ADA’s promise of equal opportunity for Americans with disabilities.

I remember the day 20 years ago tomorrow, July 26, when I went to the White House to watch President George H. W. Bush sign the legislation. The event was held outside on the South Lawn, between the White House and the Ellipse. Everyone had to pass through metal detectors to enter. The Secret Service surely had a crash course in disability awareness, because it was the smoothest security check I ever had.

As I walked through the wrought-iron gate, I looked around and marveled, “Wow, they let me in here!” They let me in, and a thousand other people. We had every kind of disability in the human condition, and we used every kind of assistive device available at the time. I like to think we were the most diverse group of citizens ever gathered together at the White House.

The ADA signing ceremony was held outside, not because it was a beautiful summer day, but because the White House itself was not fully accessible. Many in our diverse group of citizens could not have entered the building. Long gone were the wooden ramps installed five decades earlier to accommodate President Franklin D. Roosevelt’s wheelchair.

On its anniversary, pundits will debate what the ADA has accomplished since then. I am no pundit, but I still believe what I said in a TV interview after the signing ceremony. “The ADA will not end disability discrimination overnight. But in a nation governed by the rule of law, getting it in writing is the place to start.”

The Americans with Disabilities Act was an unfinished project at the moment it was signed into law, and it remains an unfinished project today. It depends on all of us, and the work we will do, to carry it to completion.

My own work has been greatly influenced by Paulo Freire, the Brazilian educator and philosopher of liberation. He taught non-literate poor people how to read by first convincing them that, through the daily work they did with their hands, they had culture and made culture. He believed culture to be an unfinished project that he called “the struggle for human completion.”

Listen to that expansive phrase again. “The struggle for human completion.” That is a worldview large enough to include all of us, whether we have disabilities or not. That is a project in which all of us are engaged. That struggle makes us human.

In the years since the ADA became law, we’ve begun to talk about something called “the culture of disability.” I do not think that disability is a fully evolved culture in the same sense that we speak of Mayan culture or even Deaf Culture. But I do believe that the work of disability is a significant form of cultural production.

By “work of disability,” I mean the daily problem-solving involved in living with a disability — making adaptations and negotiating accommodations — according to principles set forth in the Americans with Disabilities Act.

The work of disability is creative work. It’s work that addresses the impairments of individuals, to be sure, but it’s also work that strives to make society more flexible and tolerant. Many of us, disabled and non-disabled, have significant experience with this work, but it seldom shows up on a job resume.

Recently I was invited to talk about the ADA with graduating students with disabilities at Wright State University. I told them, “As you venture forth in the world, you will have to negotiate with people who see the disability, not the person. Some will look at you and see one more hassle, one more problem added to their plate. When I look at you, I don’t see problems. I see problem-solvers.

“So go out there and get it done, this unfinished project called the struggle for human completion. Claim your rightful place in the public sphere. The Americans with Disabilities Act has got your back.”

[This op-ed began as a talk given to graduating students and scholarship winners at the Office of Disability Services reception at Wright State University.]

Shown live from The Great Hall in the Robert F. Kennedy Justice Building, the event will be shown in accessible streaming media and then re-broadcast, on-demand.

Featured speakers will include Attorney General Eric Holder, former Attorney General Dick Thornburgh, former Congressman Tony Coelho, and Assistant Attorney General for Civil Rights Thomas Perez.  Their presentations will be followed by a facilitated panel discussion, moderated by Samuel Bagenstos, Principal Deputy Assistant Attorney General, and will include presentations by ADA experts who played significant roles in the development and passage of the ADA:  Bob Burgdorf, Yoshiko Dart, Chai Feldblum, Arlene Mayerson, and Bobby Silverstein.

See the ADA.gov website for links to live/on demand streams:
http://www.ada.gov/2010adacelebration/ada20webcastinfo.htm

The public sphere is an area in social life where people can get together and freely discuss and identify societal problems, and through that discussion influence political action. It is “a discursive space in which individuals and groups congregate to discuss matters of mutual interest and, where possible, to reach a common judgment.”^[1] The public sphere can be seen as “a theater in modern societies in which political participation is enacted through the medium of talk”^[2] and “a realm of social life in which public opinion can be formed”.^[3]

The public sphere mediates between the “private sphere” and the “Sphere of Public Authority”,^[4] “The private sphere comprised civil society in the narrower sense, that is to say, the realm of commodity exchange and of social labor.”^[5] Whereas the “Sphere of Public Authority” dealt with the State, or realm of the police, and the ruling class,^[5] the public sphere crossed over both these realms and “Through the vehicle of public opinion it put the state in touch with the needs of society.”^[6] “This area is conceptually distinct from the state: it [is] a site for the production and circulation of discourses that can in principle be critical of the state.”^[7] The public sphere ‘is also distinct from the official economy; it is not an arena of market relations but rather one of discursive relations, a theater for debating and deliberating rather than for buying and selling.”^[7] These distinctions between “state apparatuses, economic markets, and democratic associations…are essential to democratic theory.”^[8] The people themselves came to see the public sphere as a regulatory institution against the authority of the state.^[9] The study of the public sphere centers on the idea of participatory democracy, and how public opinion becomes political action.

The basic belief in public sphere theory is that political action is steered by the public sphere, and that the only legitimate governments are those that listen to the public sphere.^[10] “Democratic governance rests on the capacity of and opportunity for citizens to engage in enlightened debate”.^[11] Much of the debate over the public sphere involves what is the basic theoretical structure of the public sphere, how information is deliberated in the public sphere, and what influence the public sphere has over society.

The concept of public sphere is grounded in the work of Jürgen Habermas, who wrote the book The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1962). I plan to undertake a systematic close reading of the book, which I will document here in the Fair Use Lab. The first step will be rendering the text in a format accessible to me.

Other Internet sources:

• Public Sphere Guide A Research Guide, Teaching Guide and Resource for the Renewal of the Public Sphere
• Transformations of the Public Sphere Essay Forum
• Jürgen Habermas, “The Public Sphere: An Encyclopedia Article,” New German Critique 3 (1974)
• Spark summary of Habermas’ public sphere book

I thought about the ADA several days ago when I passed through U.S. Border Control at Pearson International Airport in Toronto. It’s a journey I make every few weeks, so it should be routine. I have to admit that I still feel a sense of trepidation at crossing the border, proving my citizenship, and explaining my disability to suspicious officials who decide to ask about it. No, I am not a terrorist. I’m just a guy with a white cane who can find his own way through the airport, thank-you. No “special services” are required. After I clear customs, I always sigh with relief and think, “Well, they let me in again”

That civic ritual at the border is a kind of negotiation. It involves my identity as a person with a disability in a give-and-take dialogue with the disability attitudes of others. It reminds me of the day 20 years ago when I was invited to the White House for the ADA signing ceremony.  The event was held outside on the South Lawn, between the White House and the Ellipse. Everyone had to pass through metal detectors to enter. The Secret Service must have had a crash course in disability awareness, because it was the smoothest security check I ever passed. As I walked through the wrought-iron gate, I looked around and marveled, “Wow, they let me in here!” They let me and a thousand other people. We had every kind of disability in the human condition, and we used every kind of assistive device available at the time. I like to think we were the most diverse group of citizens ever gathered together at the White House.

The ADA signing ceremony was held outside, not because it was a beautiful summer day, but because the White House itself was not fully accessible. Many in our diverse group of citizens could not have entered the building. Long gone were the wooden ramps installed five decades earlier to accommodate President Franklin D. Roosevelt’s wheelchair.

On its anniversary, pundits will debate what the ADA has accomplished since then. I am no pundit, but I still believe what I said in a TV interview after the ceremony. “The ADA will not end disability discrimination overnight. But in a nation governed by the rule of law, getting it in writing is how you begin.”

That’s the crux of what I want to say to you today. The Americans with Disabilities Act was an unfinished project at the moment it was signed into law, and it remains an unfinished project today. It depends on us, and the work we will do, to carry it to completion.

My own work in the field of disability studies has been greatly influenced by Paulo Freire, the Brazilian educator and philosopher of liberation. He taught non-literate poor people how to read by first convincing them that, through the daily work they did with their hands, they had culture and made culture. He believed culture to be an unfinished project that he called “the struggle for human completion.”

Listen to that expansive phrase again: the struggle for human completion. That is a worldview large enough to include all of us, whether we have disabilities or not. That is a project in which all of us are engaged. That struggle makes us human.

In the years since the ADA became law, we’ve begun to talk about something called “the culture of disability.” My thinking about it has changed over time, and I am not prepared to say that disability is a fully evolved culture in the same sense that we speak of Aztec and Mayan culture or even Deaf Culture. But I do believe that the work of disability is a significant form of cultural production. By “work of disability” I mean the daily problem-solving involved in living with a disability — making adaptations and negotiating accommodations along the lines of principles set forth in the Americans with Disabilities Act.

The work of disability is creative work. It’s work that addresses the impairments of individuals, to be sure, but it’s also work that makes society more flexible and tolerant. Each of you, disabled and non-disabled, has significant experience with this work, although you may not get enough credit for it. The recognition you received today is a step in that direction, and I congratulate you.

As you venture forth in the world, you will have to negotiate with people who see the disability, not the person. Some will look at you and see one more hassle, one more problem added to their plate. I want you to remember this: when I look at you, I don’t see problems. I see problem-solvers.

So go out there and get it done, this unfinished project called the struggle for human completion. Claim your rightful place in the public sphere, because the Americans with Disabilities Act has got your back. Good luck and good work to you.

[This talk was given to graduating students and scholarship winners at the Office of Disability Services reception at Wright State University. Thanks to ODS director Jeff Vernooy for the opportunity to share my thoughts with the next generation of leaders in the struggle.]

Our goal is to have people with various types of disabilities participate in this video to show poll workers a large cross section of disabilities that maybe coming to vote at polling locations during any given election.

The participation level in the video could vary from very short statements, to more involved dialogue, to being interviewed about your disability and/or explaining what accommodations/assistance you might need to cast your ballot on election day.  This could all depend on your comfort level.

If you or someone you know is interested in participating in this video, please contact Brett Harbage by Dec. 12, 2009 at (614) 387-6039 or via email at bharbage@sos.state.oh.us for more information.

The essay begins with a hypothetical problem posed by Jack Goody which was hardly hypothetical for me:

Goody (1977) poses a problem that both intrigues me and stirs a lingering doubt about the nature of my own literacy. In a discussion of Thomas Kuhn’s book, The Structure of Scientific Revolutions (1970), Goody asks this of his readers: “Imagine (though it is a fanciful task) Kuhn’s book as an oral discourse” (p. 49). Listening to such an oral discourse, Goody explains, would preclude a process essential to reading written texts visually. This process involves the recursive scrutiny of text to detect, compare, and resolve inconsistent meanings. It is a literacy skill that Goody and others regard as the cornerstone of critical thinking.

Close critical reading (and notation) of the book’s first edition led scholars to identify multiple, inconsistent usages of Kuhn’s seminal concept — the paradigm. Kuhn acknowledged and amended the inconsistencies in the book’s second edition. Goody maintains that, for the listener, such discrepancies in the text and the critical thought it represents would be “swallowed up in the flow of speech… the spate of words, the flood of argument, from which it is virtually impossible for even the most acute mind to make his mental card-index of different usages and then compare them one with another” (p. 49-50).

Goody’s fanciful problem haunts me sometimes because it is not fanciful for me. Listening to a recorded version of The Structure of Scientific Revolutions is precisely how I read the book.

And the essay concludes:

When I first learned that The Structure of Scientific Revolutions was available as a recorded book, I was thrilled. A book that I had heard about for years, a book which continues to enlarge the philosophy of knowledge in and beyond the sciences, was accessible to me. Access to information (in other words, decoding the text) is the first challenge to the literacy of blind people, and lack of access is the greatest barrier limiting that literacy. Access is not enough, however. Functional capability and social efficiency are not enough. A literacy acquired, maintained, and advanced through the oral-aural mode is capable of truly protean shapes; understanding their contexts and processes is the key to achieving a literacy without limits.

For the sake of my own literacy as well as the literacies of many other blind readers, I am pleased to report that the literate technologies available to us are far greater now than I could have imagined in 1994. Thank you, David, for bringing me back to this text.

[see the Reality Hunger website]

EEOC circulated the following email summarizing the rulemaking:

EEOC Proposed Rule Making addressing the ADA Amendments Act of 2008

On June 17, 2009, the Equal Employment Opportunity Commission voted to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008  which became law January 1, 2009.  The amended ADA lowers the high threshold for establishing that an individual is disabled set by the Supreme Court in Toyota v. Williams, Sutton v. United Airlines, Murphy v. United Parcel Service and Albertsons v. Kirkenburg  The Commission will submit the Notice of Proposed Rulemaking  and  publish the proposed regulatory changes in the Federal Register for notice and comment.

EEOC Vice Chair Griffin explained that the proposed regulations implementing the Act are intended to follow Congress’ direction to reverse the court decisions which narrowed the ADA’s s protections. Stating that the proposed changes provide a good tool for moving back toward Congress’ intention of eliminating discrimination; “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, characterized the proposed changes as an attempt to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes”.   He went on to discuss that the changes utilized  five rules of construction or principles to carry out the Congress’ intent in amending the ADA:

1. Courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability;

2.  An individual need not demonstrate limitedness in “activities of central importance to daily life”;

3.  An impairment that substantially limits one life activity need not limit others to be “substantially limiting”;

4.  The comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and

5.  Impairments lasting less than six months may still be considered “substantially limiting”  including episodic conditions and those in remission.

He noted that the NPRM will identify a number of impairments that will consistently meet the definition of ‘disability’ because they will obviously be substantially limiting.  This list includes expected conditions such as blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski emphasized that the explicit inclusion of certain conditions should never undermine the interactive and individualized nature of  that is central to the accommodation process.  The NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”

DISCLAIMER:  The DBTAC-Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant # H133A060094.  However, you should be aware that NIDRR is not responsible for enforcement of the ADA.  For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling or by calling 1-800-949-4232 (v/tty) or 404-541-9001 (v/tty).

The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.  The Southeast DBTAC does not warrant the accuracy of any information contained herein.  Any links to non-Southeast DBTAC information are provided as a courtesy and are intended to nor do they constitute an endorsement of the linked materials.

GAO found no federal laws restricting the use of seclusion and restraints in public and private schools and widely divergent laws at the state level. Although GAO could not determine whether allegations were widespread, GAO did find hundreds of cases of alleged abuse and death related to the use of these methods on school children during the past two decades. Examples of these cases include a 7 year old purportedly dying after being held face down for hours by school staff, 5 year olds allegedly being tied to chairs with bungee cords and duct tape by their teacher and suffering broken arms and bloody noses, and a 13 year old reportedly hanging himself in a seclusion room after prolonged confinement. Although GAO continues to receive new allegations from parents and advocacy groups, GAO could not find a single Web site, federal agency, or other entity that collects information on the use of these methods or the extent of their alleged abuse. GAO also examined the details of 10 restraint and seclusion cases in which there was a criminal conviction, a finding of civil or administrative liability, or a large financial settlement. The cases share the following common themes: they involved children with disabilities who were restrained and secluded, often in cases where they were not physically aggressive and their parents did not give consent; restraints that block air to the lungs can be deadly; teachers and staff in the cases were often not trained on the use of seclusions and restraints; and teachers and staff from at least 5 of the 10 cases continue to be employed as educators.

You can download highlights (PDF) and the full report (62-page PDF). Kudos to GAO for also releasing this report as an accessible text.

Listen to Joseph Shapiro’s NPR story on restraints.