by Paul Edwards
Delivered at the ACB Legislative Seminar, Sunday, February 25, 2001
Think back to the year 1964. In 1964, the Beatles made their first American tour. In 1964, Barry Goldwater ran for president, and lost. And, perhaps the best thing to happen in 1964 — from the perspective of the social history of the United States anyway —was that the Civil Rights Act was passed and signed into law by President Lyndon Banes Johnson. As monumental as this was, however, people with disabilities were missing from the groups who were covered by that landmark act.
As our country continued to evolve, and people with disabilities began to develop their own set of values and their own notions about civil rights, we began to believe that, as people with disabilities, we had the right to be fully included within the society, and we began to model many of the notions that we were acquiring about who we were, not on the medical model by which society had always insisted we define ourselves, but on a model of inclusion in society that we believed was appropriate for us.
Last Wednesday, in the Supreme Court, the notion of who we are was dealt a severe blow. In the decision that was written for a majority of the Supreme Court (a five-to-four majority), the same group of people who sought to narrowly interpret electoral law in the United States chose, this time, to insult people with disabilities. What this court essentially said is that, unlike other minorities, people with disabilities cannot be protected against discrimination by state governments, on the grounds that it is sometimes rational to deny people with disabilities protection.
On the face of it, that is a speciously ridiculous argument! More important, what the Garrett case essentially said — and I think we need to stress this as strongly as we can — is that somehow it is all right for people to discriminate against those of us with disabilities even though it is not right for people to discriminate against people who are African-American, people who are Hispanic, people who are Jewish, or Roman Catholic, or people who are women. According to the Supreme Court, those minorities warrant protecting because there is sufficient evidence of a pattern of discrimination which justifies their protection. The court found that there is not sufficient evidence of a pattern of discrimination against those of us with disabilities.
The American Council of the Blind has been concerned about the Garrett case for a long time. One of the folks who has been most vociferous about the Garrett case, urging us to pay attention and keep a watchful eye on the court and the case, was Charlie Hodge. Earlier this week, when the decision on Garrett was released, the first thing that Charlie did was to pick up his phone and call me and say, “Well, I could say I told you so,” because he had been saying for a long time that he believed the case would come out the way it did. I, being an eternal optimist, had continued to believe that the Supreme Court couldn’t really have the audacity to suggest that disabled people are truly second-class citizens, as this decision suggests that we are.
Charlie Hodge asked what we were going to do about it, and particularly, what we were going to do about it in terms of the upcoming legislative seminar, and I told Charlie that I felt his was an important question, and one that deserved an answer. Therefore, nine of us met over lunch to try to come up with some answers. I’ll tell you who was there, because I think it was a very distinguished group: We had three people from the board of NELDS (National Educational and Legal Defense Services for the Blind); me, as President of ACB; Jeff Thom, president of the American Blind Lawyers Association; and Charlie Hodge, also a distinguished member of the board of NELDS as well as a respected practicing lawyer and a person who is close to the Beltway. In addition, we had Sue Crawford, who spends her every working day as a mediator enmeshed in ADA issues; Michael Byington, who chairs our ACB Resolutions Committee, and was there to provide some historical perspective; our First Vice President, Brian Charlson, who was there to provide us with some sanity and good sense (with so many lawyers around, it was very helpful to have Brian there); Charlie Crawford, our executive director; Patricia Beattie, who is the policy analyst for National Industries for the Blind (NIB) and also serves as treasurer of ACB; and Melanie Brunson, who is, of course, the point person with regard to the issues raised by the Garrett decision.
As we assembled with our lunches in hand, I asked us, as a group, to try to avoid the hysterics we all tended toward with regard to the Garrett case, and to try, instead, to answer two questions: First, what in the long run does ACB believe we can most appropriately do to respond to the Garrett decision? And second, what is it that we should tell all of you to say to your folks on the hill tomorrow?
A Long-Term Strategy
First, I want to talk about what we believe needs to happen in the long term. Any response we make to the Garrett decision must be an action that we take in an appropriate and forthright way. It’s hard to do this with a decision like Garrett, however, because the truth is, ladies and gentlemen, any of us in this organization who are not really furious about the decision essentially are not really listening to what the court said. It is absolutely crucial that we say to the country at large, through the actions we take in the next few months and years that every person with a disability is a member of a minority that is discriminated against, just as categorically and just as absolutely as is anyone who is a member of any of the protected minorities, and to create a difference between people with disabilities as a minority and others as a minority is an attempt to divide and conquer. And we will not stand for it.
A Three-Pronged Long-Term Approach: Now It’s Our Civil Rights That Are At Stake
The American Council of the Blind is a member of the Leadership Conference on Civil Rights. We have consistently stood up and been counted when issues of civil rights have been raised with regard to other minorities. We have worked with the Leadership Conference, we have supported the Leadership Conference financially, and now it’s time that we go to the Leadership Conference as people with disabilities and say, “Now it’s your turn to stand with us.”
While we’re saying to the Leadership Conference, “Now it’s your turn,” we also need to be saying to other people with disabilities, “You need to stand with us, and we all need to work together to say to everyone in this country that we are insulted and defamed by the notion that we are not worthy of being protected with the same civil rights as you accord to other citizens of this country.”
I have asked that Charlie Crawford work with other elements of the blindness community, and Charlie and I will work with other elements of the disability community. We in ACB will take a leadership role. We will develop a position that we will take to leaders of Congress and we will take before the nation. But we’re not leaving it there, because that is not sufficient.
A Model Disability Law for the States
One of the core provisions of the Garrett decision was to suggest that one of the remedies that’s out there is to pass state civil rights laws that would have the same provisions as those incorporated in Title I of the Americans with Disabilities Act. It is our intent, within the next two months, to develop a model state law which we will circulate to each affiliate so that you can work with other disabled groups in your states to pass laws that will say, “If the federal government can’t make you live up to your responsibilities of enabling people with disabilities to work, then we’ll pass state laws that will force you to do it.” But that’s not enough either.
Congress Must Amass the Necessary Body of Evidence
We also need to begin to develop a long-term strategy that will enable us to go to Congress and say, “You have a responsibility to develop findings about the discrimination against people with disabilities that will be sufficiently demonstrative to overturn the Garrett case, because the Garrett decision hinges on the opinion of the majority of the justices that there is not enough evidence adduced by Congress to suggest that people with disabilities are systematically discriminated against, and in fact, so systematically discriminated against that a pattern of discrimination can be deduced legally.”
Clearly the evidence is there. But we need to ask Congress over time to go back and put that evidence on the Congressional record, so that the Garrett decision can be overturned and once and for all, we can be regarded as having the same requirements for protection as other minorities. We will do that.
Finally, how do we respond tomorrow?
I said to our own assembly of nine at lunch that I believe that each and every one of us wants to respond when we go to the hill tomorrow. Is that true? [Edwards’ query was met with resounding applause and a chorus of, “Yes!”]
The Four Points We Need to Get Across to Our Congressional Representatives
This is what all of us should say in response to the Garrett decision when we visit our representatives on the Hill tomorrow:
Number one, we are very disappointed in the Supreme Court decision.
Number two, we know that Congress is disappointed in the Supreme Court decision because we recognize that Congress intended the Americans with Disabilities Act to protect people with disabilities and the Supreme Court chose to limit the Congress’ ability to do effectively what it wanted to do.
There are two entities that still have the ability, under the Supreme Court decision, to take states to court. These are the Department of Justice, and the Equal Employment Opportunity Commission (EEOC). So, number three, we are asking our friends in Congress to allocate additional funds to enable the Department of Justice and the Equal Employment Opportunity Commission to become advocates for people with disabilities when they’re discriminated against by state governments.
Any of you who have followed the implementation of the ADA know that one of the things that has been disappointing has been that DOJ and EEOC have not exactly been paragons of enforcement. In fact, it’s probably fair to say that if there’s a term for what is opposite of “paragon,” that’s what DOJ and EEOC have been. Therefore, number four, please monitor the Department of Justice and the Equal Employment Opportunity Commission to assure that they utilize the funds you allocate to vigorously fight the discrimination that we know exists against people with disabilities by state governments.
A Turning Point
Ladies and gentlemen, the Garrett case is an important turning point because the time when we as people with disabilities could be nice, could be calm, could be quiet, could be “sensible,” is past. Now we’re at a place where we’re disheartened, discouraged, and angry enough to change things. Now we have to go out and say to the rest of the country, we are minorities with the same rights that other minorities have. More important, we must be, and we will be recognized as having the right to work for state governments, having the right to be protected against the vagaries of state governments, and not ever accepting the notion expressed by the majority of the Supreme Court that suggests that it is rational and even appropriate to discriminate against people with disabilities simply because it is rational to assume that a person with a disability can’t do the job.
I believe that the positions we have decided to take with regard to the Garrett decision are immediate, appropriate, and will have some impact. I believe the work we’re asking you to do on the Garrett case, on accessible pedestrian signals, and on other important issues at the state level will make a substantial difference in the way that blind people will function in the 21st century.
And I believe that the role the American Council of the Blind will play over the next few months, in the unfolding of our disabled community’s response to the Garrett decision, will offer us an opportunity to demonstrate, to the disability community and to the country at large, that we are the leading organization serving the interests of people who are blind.