Braille Monitor                                      October 2016

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Eliminating Artificial Barriers: Civil Rights and Disability at the United States Department of Justice

by Eve Hill

Eve HillFrom the Editor: It is no accident that Eve Hill has become an annual fixture on the National Federation of the Blind’s annual agenda. She is passionate, articulate, and informed. She is able to communicate all of these, and for this reason it is always our pleasure to put her remarks in the pages of the Braille Monitor. Here is what she said to the 2016 National Convention:

Good afternoon, and thank you, President Riccobono, for that really nice introduction and for your work in making the NFB such an impactful and powerful organization and for all of you for contributing to that.

For decades NFB has brought stakeholders together to safeguard justice, advance opportunity, and defend the rights of blind people. In doing so, you help blind people live meaningful, enjoyable, productive lives; you enable our communities to reach their full potential, you advance America's founding dream as the land of equal opportunities, and you make the promise of our laws a reality for everybody [applause].

President Riccobono told me that they saved some space in the agenda for friends of NFB and for fresh meat. He didn't say which one I was, so I'm very glad that he introduced me as a friend of NFB, and if there's a fresh meat section, I'm going to save it for the end because he also told me that I have four minutes less than I had planned on.

Not that long ago for blind people and people with other disabilities, this dream and this promise of America—the land of equal opportunity—felt really distant and out of reach. Discrimination was often built into our laws and into our public services, and because those laws and service systems were based on faulty assumptions about the capabilities of people with disabilities, they made those mistaken assumptions into self-fulfilling prophesies. But the beauty of America's story and the promise of its legal framework shows us that we, as a country and as a people, can change. We can progress—not always perfectly, but unyieldingly. As Dr. Maurer used to say, we don't lose the war because we don't stop fighting.

We can pass new laws and enforce the ones we already have to make sure that the freedoms our constitution guarantees and the opportunities that all people deserve are actually reached by everyone. So the arc of our nation's progress in the disability rights arena highlights this. In the 1960s and 70s around the country, the exposure of the inhumane treatment in institutions sparked public outrage. Outrage fueled advocacy, and over time advocacy drove legal change, resulting in part in our 1999 decision by the Supreme Court in Olmstead vs. LC that segregation of people with disabilities is discrimination. But of course laws and rulings alone don't vindicate rights; people do. People like you, organizations like NFB, and organizations like the Justice Department—particularly, I'd say, the civil rights division. We all know, unfortunately, that there's a lot of tough and really important and urgent work that lies ahead to vindicate those rights. Even seventeen years after the Olmstead decision and more than twenty-five years after the enactment of the Americans with Disabilities Act, far too many people with disabilities continue to see a real gap between what the law promises on the one hand and what people really experience on the other. We see this gap in transportation as people with disabilities face unlawful barriers when traveling to work or on a plane, as we heard earlier; barriers to vacationing with their families, areas where the Justice Department has tried to take on these issues aggressively, including from Amtrak's rail stations to Greyhound's bus fleet, where I must note that we have secured an uncapped damages fund--if you have been treated badly by Greyhound because of a disability, you should be filing a complaint through this process—and all the way to Carnival cruise ships.

We see this gap in the electoral process. Too many people with disabilities trying to participate in our democracy find themselves turned away by unnecessary barriers to a private and independent vote. Through the ADA voting initiative, the department continues to address these barriers with open investigations of polling places, voting registration, and ballot accessibility all around the country. We see this gap in employment as 450,000 people with disabilities spend their time in segregated sheltered workshops or day programs, with some payed just pennies an hour.

We see this gap in technology as new technologies are developed and older technologies—I must say that websites are now an older technology—as these are deployed and rolled out in ways that don't include people with disabilities and thus exclude them even more than the old paper-and-pen world did. We see this gap in education as schools deny children with disabilities the opportunities they deserve to learn and thrive alongside their non-disabled peers. And we see this gap in the justice system as too many people suffer from policies that criminalize mental illness and other disabilities.

Right now I'm reading this new book; I was reading it on the plane. It's called The Boys in the Bunkhouse, which chronicles the story of the men with disabilities in Atalissa, Iowa, who worked for decades for Henry's Turkey Service for $65 a month and lived in an abandoned schoolhouse where cockroaches infested the kitchen, the heater didn't work, and the fire doors were padlocked shut. That story demonstrates the many ways institutions can ruin people's lives: by separating them from their families; by putting a profit motive on their care; by making them outsiders, someone else's responsibility to their neighbors; and by taking away choice and the ability to grow and learn. That story also highlights the people who tried to raise the alarm and were thwarted by bureaucratic silos and pretty lies and such an ingrained assumption that the men there were so different from the rest of us that it just wasn't even necessary to ask them about their experience. It makes me furiously angry and inconsolably sad, and even after the lawsuits by the heroic Robert Canino of the EEOC--you may not think of government lawyers as heroic, but some of them are--he's one of them. Even after the rescue and resettlement of those men, it's still not right. Many of them have been moved to nursing homes in Texas because they were given no other choice. None of them have gotten the damage—$240 million dollars in damages—that the jury awarded them because the money is gone. And those damages were awarded not for back pay alone, but for the loss of enjoyment of life for decades, and that strikes me as the real harm from institutionalization. It's not okay; it has to stop; I have to stop it; we all have to stop it [applause].

In partnership with many of you here today, the Justice Department works to make sure that people with disabilities—our friends, our families, our neighbors, our colleagues—can live and work and learn in their own communities with everyone else. For the last eight years the Obama administration, in partnership with you, has lead vigorous Olmstead-enforcement efforts that breathe new meaning and real life into the Supreme Court’s findings.

Since 2009 we've taken action and filed briefs in fifty Olmstead integration matters in twenty-five states. And, because of our Olmstead work, today more than 53,000 people with disabilities—53,000 people—will have meaningful opportunities to receive services in integrated community-based settings that they choose [applause].

In Oregon and Rhode Island in the past three years the department's enforcement efforts have led to statewide commitments to transform their employment services systems from ones that enforce the tyranny of low expectations in sheltered workshops to ones that support people with disabilities to pursue their goals and their dreams in real jobs at real wages in their communities. Throughout our Olmstead work we see close connections between barriers to education and limited opportunities in employment and other aspects of life. When students capable of learning in integrated classrooms don't get the opportunity to do so, they just don't get access to the full set of skills, resources, and experience they need to reach their potential in the classroom, in the workforce, or in life.

Last year the Justice Department took on the unnecessary segregation of students with behavior-related disabilities in so-called special schools in Georgia. Our letter of findings about the Georgia Network for Educational and Therapeutic Support (GNETS) makes clear that the ADA prohibits states from unnecessarily placing students with behavior-related disabilities in separate and unequal schools. Some of these were the black schools from the days of legal segregation of schools. They cannot put them in those separate schools when they can learn in regular education settings.

Our Olmstead community integration efforts span an array of areas. Last month we released findings that South Dakota unnecessarily relies on nursing facilities to provide services for people with disabilities of all ages. Thousands of people who rely on South Dakota for their services must live in nursing facilities in order to receive those services, isolated from their communities, often surrounded by people with very little in common with them. For example, one of the people we spoke to is a seventy-seven-year-old man with diabetes who's lost his vision and went to a nursing home after a toe amputation. All he needed was some help to check his feet regularly. He's been living in an institution for five years.

As part of our efforts in this area to address the rights of people with disabilities to live in their communities, under the leadership of the attorney general and the deputy attorney general, we launched a new initiative just recently to look at the interaction between mental health and the criminal justice system. Make no mistake: the community integration mandated in Olmstead applies not just to some but to all public entities [applause]. That includes the public entities in our criminal justice system. And the Justice Department's efforts in this space focus on four key areas: on the streets we want police officers to de-escalate tense encounters with people with disabilities and reduce the need to use force; in our courts, where appropriate, we want to divert individuals with mental illness from incarceration and connect them with community-based services; in our jails and prisons we want to ensure that people get connected with the services they need to successfully reintegrate into their communities and stay there; and in order for the criminal justice entities to meet their obligations and address the needs of the whole community, states and localities need to meet their ADA obligations to provide community-based services. We cannot truly achieve fair and smart criminal justice reform until criminal justice entities and local jurisdictions fulfill their Olmstead obligations.

We've recently entered into a number of settlement agreements in Portland and Seattle and Cleveland and in Hinds County gotten these jurisdictions to interact with their local mental health systems and with people with disabilities in their communities. In addition to working on de-escalation and crisis intervention programs, these jurisdictions have created committees to advise them on how to better keep these silos interacting in ways that get people to the right services, instead of into a jail where they won't get them [applause].

We're also focusing our efforts on ensuring that people with disabilities have full access to all the basic activities that people without disabilities take for granted and that form the basis for the enjoyment of life, from parenting to learning to using the internet to do whatever you want and whatever you can afford when and where you want it, including at home in your bunny slippers (that's the way I do it.)

Let's start with parenting. We recently made a finding that the state of Massachusetts discriminated against a parent with a disability by taking her child away from her in the hospital and failing to provide the full range of reunification services that it offers to everybody and by failing to provide reasonable modifications in those services specifically to accommodate her disability. That state kept that child away from her mother for two years [boos]. But recognizing that this was happening all across the country, last year we and the Department of Health and Human Services issued a technical assistance document entitled "Protecting the Rights of Parents and Prospective Parents with Disabilities." That document makes clear that the ADA applies to child welfare agencies and courts making decisions about child custody and placement, neglect, and abuse [applause, cheers]. The ADA prohibits these agencies from basing their decisions on incorrect stereotypes about people with disabilities, requires them to provide reasonable modifications to their policies when needed to allow a parent with a disability to fully participate, and it challenges the stereotypical assumptions that child welfare agencies have too often made about parents with disabilities and requires people with disabilities to be treated as the individuals they are [applause].

Technology: We are becoming more and more a technology-dependent society. And we at DOJ are enforcing the ADA in ways that ensure that technology is designed and implemented so it actually achieves equally effective communication for people with disabilities, both in educational institutions and everywhere. We've been enforcing the ADA requirements for accessible instructional technology and content against educational institutions and others since 2010, when the NFB said, hey, what about these six colleges that are implementing an inaccessible e-book reader that I won't name—I could but I won't. We reached agreements with those six colleges—I'm in there somewhere, not necessarily where I am now—that required them to agree not to purchase, require, or use inaccessible e-book readers [applause] and to ensure that a student who is blind or has low vision can acquire the same information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use—and you can thank Dan Goldstein for that standard [applause]. And we in the Department of Education followed that with Dear Colleague letters to colleges, universities, and elementary and secondary schools, saying that the use of inaccessible emergent technologies in the classroom violates the ADA. We also followed that with a settlement agreement with the Sacramento Public Library, which had purchased a bunch of inaccessible NOOK e-book readers to lend to its patrons. The settlement in that case requires them to buy at least eighteen accessible e-book readers to lend [applause]. Web-based, even online-only instructional technology and content providers themselves have ADA obligations to make their services accessible if they offer them to the public. We've made clear that providers of educational and entertainment services online can be covered as public accommodations under Title III of the ADA, so we and NFB have also been enforcing the accessibility requirements against those entities. We've made that position clear against Netflix, who I'm sure was thrilled about that. We've reached agreements to make websites accessible with the Peapod Grocery Delivery Service and with H&R Block, and we've been very active in enforcing the ADA in the context of online education and instructional technology and content. In 2013 we reached a settlement agreement with Louisiana Tech University for using a version of an online learning product that was inaccessible. One blind student was unable to get the course materials for a month into the university quarter, at which point he was so far behind he had to withdraw from the course. Under the settlement agreement, the university has to adopt a number of disability-related policies including: they have to require themselves to deploy learning technology, webpages, and course content that is accessible in accordance with WCAG 2.0 level AA all across the university setting; they'll make their existing webpages and materials created since 2010 accessible; and they'll pay that student $23,543 in damages [applause].

Then we get into MOOCs (massive open online courses). Last year we reached a settlement with edX, which operates a MOOC platform with content from sixty colleges and universities. Under that settlement, within eighteen months edX will make its website, mobile apps, and learning management system all comply with WCAG 2.0 level AA. It will make sure its websites, apps, and LMS don't interfere with accessibility features of any content providers using WCAG math ML, WCAG 2ICT, ARIA, DAISY, and EPUB3. Eighteen months after that edX will make its content management system accessible—WCAG 2.0 level AA; it's a theme. In future contracts with content providers edX will notify them of accessibility requirements and encourage them to make their content accessible and require them to certify it before they post content that it is accessible [applause].

And the big boys: Harvard and MIT--we filed a brief in a suit by the National Association of the Deaf challenging Harvard and MIT's failure to put captioning on their online videos and audio files. Our brief made clear that enforcement of the ADA's effective communication requirements does not need to wait for our rule-making efforts to be completed [applause], that has become more important than I thought it was.

We recently joined NFB in a suit against Miami University, which is still proceeding, about its failure to ensure that its educational technologies are accessible. We've also focused on making accessibility of websites and technology part of all of our accessibility work. So our employment enforcement: we in the past year have incorporated making online job application and job testing material systems accessible, with six local governments in the past year having agreed to do that. And we've made accessible websites a key component of every single one of our Project Civic Access compliance reviews of state and local governments.

And that's just DOJ. The Department of Education has also been active. Just last week they reached settlements with education organizations in seven states and one territory to make those websites accessible for people with disabilities.

Honestly, we've been following on the NFB's coattails in many of these actions, and I can't wait to hear from Jamie, who's really a hero to me. Am I done yet, have I run out of time?

President Riccobono: "Oh, long ago."

Eve Hill resumes: Oh, darn, then I can't go into the fresh meat part. We have not yet issued a rule. We have issued a supplemental advanced notice of proposed rulemaking. Please tell us what you think; be honest—I dare you [laughter]. But we're going to continue to enforce the law that already requires that the communications of covered entities, including those communicated through technology, must be accessible. We don't need to wait for rulemaking, and we won't [applause].

So I continue to look forward to working with you. This is my favorite conference to come to, and thank you very much.

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