Braille Monitor                         October 2020

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Leveraging the Power of the Americans with Disabilities Act to Secure Our Right to Live in the World for Thirty Years

by Scott LaBarre, Marc Maurer, Dan Goldstein, Eve Hill, and Timothy Elder

From the Editor: At the NFB 2020 Convention, President Riccobono introduced our next distinguished panel with these words:

I'm going to turn this over to a gentleman who, in many ways, serves as our general counsel so to speak. He does legal work of all sorts for the Federation. He helps to pursue legal assignments that I send his way, but he also works with a number of our organizational questions, and he has become a leader in the American Bar Association. Amongst his legal work, he has continued to be in the community of the National Federation of the Blind, serving not only as president of our Colorado affiliate but our Association of Blind Lawyers, where he has built a real community. I'm going to let him introduce the rest of these great panelists who have a lot of great things to say, and I'm sure they're going to point us toward the future of what we need to be concerned about in advancing the next thirty years of the Americans with Disabilities Act. Here is Scott LaBarre:

Scott LaBarreSCOTT LaBARRE: Thank you so much, President Riccobono. We'll certainly talk about tomorrow, but to get to tomorrow, we have to talk a little bit about yesteryear, where we have come from, and how we've gotten here. We're celebrating the thirtieth anniversary of the Americans with Disabilities Act on July 26, 1990. President George H. W. Bush signed the ADA into law. Many of us were trying to predict at that time what it would mean for us as a blind community, what it would mean for the National Federation of the Blind, how we could use it, and what we would have to worry about. That's a little bit about what we're going to talk about, but we'll also address the future. Because even though we have made great strides over these many years, and an example of the great strides we have made show up in Laura Wolk and knocking down barriers so that she could climb those steps to very, very high places. I've got to say, Laura, I look forward someday—I probably will be an old lawyer by then, I suppose I already am an old lawyer—but anyway, someday I look forward to arguing a case in front of you!

Anyway, let me briefly introduce this august panel we've assembled this evening. I realize we're the last thing between you and your virtual happy hour, so please hang in with us, all right? We have on this panel Dr. Marc Maurer, who is of course our Immediate Past President of the Federation. He is now the director of our legal programs. He really truly played just an imperative role in developing our legal policy.

We have Daniel Goldstein, an attorney who is now retired, but who founded the firm of Brown, Goldstein & Levy and really helped us to craft our legal policy in the early years of the Americans with Disabilities Act. We have Eve Hill who is now a partner at Brown, Goldstein & Levy. We, of course, worked with her when she was at the United States Department of Justice as a deputy assistant attorney general in the area of civil rights and specifically had charge over the disability rights section of the DOJ. Our last panelist is Tim Elder, who is the principal and manager, founder of TRE Legal Services in California. He is the second vice president of the National Association of Blind Lawyers and president of the National Federation of the Blind in California. He's the youngest member on this panel, the least experienced lawyer on this panel, but even in his few short years in the legal profession, he has already had a tremendous impact on shaping our policy, on shaping the legal landscape. So we have just truly an amazing panel here this evening.

I want to spend just one second on the origins of the ADA. At an anniversary like this, all of these people get up, Congressmen and women, and professors and lawyers, and they say, you know, I was the founder of the ADA! I was one of the founders of the ADA! And I did work that caused it to come into being. But I would submit to you, ladies and gentlemen, that our founder, Dr. Jacobus tenBroek, really truly was one of the authentic founders of what became the Americans with Disabilities Act. Why do I say that? It's because Dr. tenBroek boldly, bravely, declared that the blind had a right to live in the world, and that right had to be secured by law. He is the one who initiated the laws that we called later on "white cane laws." He is the one who in 1964, when the Civil Rights Act was being debated before Congress, said that disability should also be a protected status under law. No one else was saying that then, or at least very few people. It is his work, his legal thinking, that really allowed us to develop all of the disability rights laws that came after. So we have a great deal of debt that we have to still pay to Dr. tenBroek and his amazing work.

Dr. Maurer, I want to first turn to you and ask you to tell us: When the ADA was first being developed, what did the Federation think of it?

Marc MaurerMARC MAURER: I have a response to this question, but I want to say about the Americans with Disabilities Act that it is an important law. It is not the most important thing, however. The law is important only to the extent that people think it's important. There are a number of them that nobody much cares about. So the question about the Americans with Disabilities Act is partly that it's there, and partly that people think it's important. In order to make it important, the people who interact with things like law and the life that we live that is affected by law have to think it's important, and they have to behave as if it's important.

Take today's presidential report. That shows that we think this is important and that we're causing other people to come to have the same opinion. So the most important thing is not the law itself but how we behave with respect to it.

When we thought about the Americans with Disabilities Act in the beginning, we thought you could interpret it two ways. You could say that because you have a disability, you have certain things to which you're entitled. If you say that those things are the right to equal access to information and so forth, then the law is well understood and may be interpreted to give us opportunities that we didn't have. If you say that because I've got a disability, you MUST employ me, then that is a problem. We have to do our part to demonstrate our capacity, and we were worried that all the talk about the rights of people with disabilities would mean in the beginning that people thought that just because I've got a disability and just because we now have this law, I have a right to certain property interests that I didn't before. What we wanted was equality of opportunity, not equality of result. If you earn the result, then we thought it was worthwhile.

As I said to Dan Goldstein decades ago, close to thirty years now, I said, unless we can show that the disabled have economic benefit in the society in which we live, it doesn't matter how many laws we pass. If we pass a law that says we have equality and we can't compete, then we don't deserve it, and the law won't work. We have to demonstrate the economic benefit that we have at the same time. So we wanted equality of opportunity with all of that which is implied by the thought, which is an enormous amount. We did not want to say that with this law we have a right to demand that some of what you have, either your government or your employer or your whatever, have got to give it to me. We wanted the opportunity to earn our way, and we were worried that the law might be interpreted improperly.

SCOTT LaBARRE: And I would say that certainly that was a valid concern at the time. It probably is still a valid concern. But it's been interesting. The ADA over the years has been interpreted so narrowly that it has not given us the benefit, I think, that we thought maybe it would. Dan Goldstein, what would you say to this question? How did the NFB start developing a policy or a practice of taking advantage of the ADA? How did we use it as a tool?

Dan GoldsteinDANIEL GOLDSTEIN: Well, that really started about nine years after the passage of the ADA. For many years, we were reactive in the sense that somebody would come with a problem, and Dr. Maurer would decide this was a problem that should be handled with a legal action. And so we did that. Then in late 1999, Dr. Maurer pointed out the tremendous consequences that were flowing from the digital world taking over. They were negative consequences, and they were gratuitous consequences. They were barriers that did not need to be there, when in fact, in the absence of barriers there would be an equality that hadn't been there before.

Dr. Maurer set forth as the task getting developers to think about the word "us" as including the blind when they develop technology. Some of it was reactive, but very often it wasn't. ATMs were a terribly important convenience, so we went after the accessibility of ATMs. Sometimes it was slightly reactive. There was a fellow who wasn't an NFB member who sued Maryland over inaccessible voting machines. The judge did not have confidence in him and asked us to step in. We did, and there began a long series of very important voting cases. Of course the first of these that we did was against AOL. The strategy evolved as we learned. One of the things that we learned very early on is there are giant holes in the ADA. We can't go after an inaccessible technology directly in most cases using the ADA. So we had to pressure the customers of those technologies by suing them instead.

SCOTT LaBARRE: I think from my perspective, these cases really started to help define what purposes we had for our legal program and how we started to make decisions about the cases we would take and those we wouldn't. Dr. Maurer, would you like to comment a little bit about how we develop the purposes of our legal program?

MARC MAURER: Well, the idea was to see that we could get accommodations that would help people get employment. You've got this great big piece of employment law in the Americans with Disabilities Act, and yet the unemployment rate is enormous. The opportunities that the Americans with Disabilities Act might give to employment should be huge. There was a lot of study about it in the 1990s, and people said this was going to cost the United States enormous amounts of money. Yet the unemployment rate remains the same, and those of us who got involved in litigation with respect to employment found that most of the time we lost. We lost because people said it was just not practical to have people with disabilities be employed.

There's a 1999 Supreme Court case, which causes my blood to stir still, even though it's twenty-one years old. In this case Chief Justice Rehnquist made the statement that it would be rational and therefore constitutional for a state with scarce resources, and what state doesn't have scarce resources, to say that it wasn't going to employ people with disabilities because it should reserve the resources that were not too abundant. By saying this, you get the idea that it's more expensive to have the disabled around, and as a matter of law the disabled aren't as productive as those who don't have disabilities. I read this case, and I say, how does the justice know? Is it in the record? Can you demonstrate it? Anyway, you can see why it stirs me still! And yet, not all of the cases have been that way.

So we looked at what was out there. We looked at the possibilities, and we thought, do we think this one has a better than even chance of success? People especially like to sue the government. I know this. The government doesn't mind, or at least it doesn't seem to. There are lots of lawyers that are employed by the government. They've got huge legal offices, and they've got almost an inexhaustible budget. Yet if you sue the Internal Revenue Service, you've got sympathy on your side instantly, even though it's the government, and the government has many, many advantages. Still the public is with you, and even the judges seem to take a kind of an interest in it. Consequently, we looked at the cases, and we tried to figure out which ones we thought we could win and which ones we could use to advance the opportunities.

I asked Dan Goldstein one time: You've got this employment piece in the Americans with Disabilities Act. Why does it not let us sue people who are paying sub-minimum wages? After a while, he came back and said, “Well, there's this exception.” I thought, you've got a whole piece of legislation which says that there ought to be equality of opportunity, and yet the sub-minimum wage statute remains on the books! So you can't attack it directly. You have to attack it indirectly. Well, we did a lot of indirect attacks and expanded our reach each time we did and tried to get somebody to pay attention.

So far we haven't frightened anybody to death or at least not so far as I can tell. We did get a magnificent settlement in the Target case, and that changed the technology world. It couldn't have been done, I think, without the AOL case. But the Target case helped to get on the map the idea that access to this internet, which was becoming the entire world, had to be considered a possibility. We still have a long way to go, but we made a long stride that day.

SCOTT LaBARRE: So, let me now bring Eve Hill into this. Eve, you've come into our legal program a little bit later, and certainly one of the struggles that we have had over the years is getting the courts to accept the idea that the internet really is something that is covered by the ADA. But there's still this tension between whether or not an entity's goods and services are connected with a physical place or whether or not it's just purely virtual. Some courts say that if it's purely virtual, we have no right of access to it. Where do you think we are, and where do we need to go?

Eve HillEVE HILL: Well, in the technology space, there is this hangup, which is honestly a tricky argument made up by defense lawyers, unfortunately bought by courts, that "place of public accommodation" means physical place. They've been making that argument all over the place. The good news is nobody has actually bought that argument yet in a web case. People keep thinking, oh, there's a split in the circuits. But as we all pointed out in the Domino's Pizza case, there's no split in the circuits right now. The 9th circuit has said you have to have a physical place. Other circuits have indicated you don't have to have a physical space, but never in a website case. So I'm thinking we're still going to do okay in this eventually.

But I think because the internet really didn't take off until just about the time that the ADA was passed, they didn't think about these emerging technologies in the way they probably would now. What we say in the case of a building is, if you build a new building, its gotta be accessible. And there's liability, at least in some circuits, for the architect and the designer and the builder if they don't make it accessible. So there's an argument to be made—I know, because I've made it—(laughing) that websites and other technologies that were built since the ADA should be built accessibly from the beginning, and that we should stop putting them in the area of effective communication and treat them as something that there should be no excuse for building something new inaccessibly.

So we'll see if that plays out, right now, because the Justice Department—I know, I'm so ashamed—has not undertaken its regulatory responsibilities. That's not there.

I think this great thing about the ADA, the thirtieth anniversary is, we're starting to get, I hope—I may just be really optimistic today—a little over the hangover of the charity model of disability. So the ADA rejected that. No, it took no pity all the way. We can do everything we can do. And all the assumptions that say we can't are out of here. You look at us; you just figure that if we have a disability and we're qualified, and then you give us the accommodations to do our job. The courts for ten years said, no, no, no you're not disabled enough! We don't feel bad for you, so you don't have a disability. So you're not disabled enough, so you're not covered. Oh, you're disabled enough to deserve charity, so you can't do the job. There was no winning at all. The good thing is now I'm starting to encounter judges who go, yeah, people with disabilities can do whatever, and that this definition of disability as meaning you can't work, isn't the case. So at least some of the assumptions that underlay the law that allows people to be kept in subminimum-wage sheltered work are crumbling. I think that gives us a lot of hope.

SCOTT LaBARRE: Well, Eve, I hope you're right. But I can also imagine situations in which we think we have secured a victory, but maybe we haven't. Tim, I'm going to bring you into this now. This is going back to the employment context. You were involved with the Reyazuddin case where we won a jury trial. But did we win?

Timothy ElderTIMOTHY ELDER: We did in some respects. And first, let me say, the team and the legal work that we do as a Federation to advance the ADA over the last thirty years—this is the best. Like, this is the best work out there in disability rights, access to digital technology. Our team and the legal work that we're doing—we're leading this on a global scale. So it's been an absolute privilege to be part of it.

I choose this career, and I've chosen to do this work because it's amazing, and it makes an impact. There's a lot of other things that we might be doing as attorneys, but this work really is meaningful. I've seen the difference that it has made, from Target.com and some of our other victories; Reyazuddin—the battle continues on for Yasmine, but it is a victory to some extent. We also really need to be looking to the future and what technology means in the employment space. We can't be doing the reactive approach any longer. We really need to be thinking about how we go upstream. The technology is being developed through the stream of commerce. A developer is building one piece, combining it with another developer, they're combining it into a platform, selling it to someone else, and then they're selling it to the employer at the end of the stream. If accessibility has to be dealt with at the end of the stream, we're never going to win this war. We have to figure out ways to take the law that we have and strategize and reach further up that stream, impose liability, make those developers at the top of the chain understand that they have some responsibility. They have liability. And as Dr. Maurer said, they have to think that this is important. For our employment work, I see that as really the future of where we're going to need to go.

Artificial intelligence: what does that mean? I'm excited to work on some of these emerging issues. We've got a lot of questions. But I'm excited to see what the next generation is going to do. Kaylee [Brendle], when you're an amazing disability rights lawyer working with Dr. Bennett on how to make sure AI doesn't discriminate against blind applicants, I'm excited to see what we'll do in the next thirty years.

SCOTT LaBARRE: Tim, on that point, are we going to be able to get there through litigation and with the existing law, or are we going to have to change the law?

TIMOTHY ELDER: I think we have to do things differently than we have done; that’s always been true, and we've always adapted and moved forward. This convention is a great example of how we as a community are very innovative and creative, and we have a huge talent pool to use. We can't just look at the law, either. It's not just litigation anymore. It's litigation-plus. The work we do is amazing, but frankly it's a drop in the bucket compared to the level of compliance that's actually happening out there in the real technology world. We need to figure out ways to harness other forms of technology to make the technology work for us, to use litigation combined with other strategies. For example, what are we doing to crowdsource self-advocacy? We need to be doing big landmark cases at the very top, at the Supreme Court, and things that trickle down. But we need to empower more people to self-advocate in small claims court, in administrative proceedings, to have more toolkits that use automation and efficiency to bring more attention to digital accessibility and legal compliance.

We can't just look at it as the court is our forum of enforcement any longer. We do have to think really strategically about how we use our litigation in connection and integration with many other strategies. Media, perception, automation, efficiency—there's a lot of exciting stuff coming out with artificial intelligence. I think in some cases we're going to be using artificial intelligence to generate advocacy for individuals even. So I'm excited for these next thirty years.

SCOTT LaBARRE: (laughing). Yes, Dr. Maurer?

MARC MAURER: You've got to be careful what you wish for here. If you look at what Tim has said in one way, he indicates that we need lots more lawyers doing lots more cases.

EVE HILL: No, no, no.

MARC MAURER: If you do that, what you want are lots more bright lawyers doing the proper cases in the proper way. We've got a bunch of lawyers out there who are doing the ADA and the disabled no good at all by bringing cases that are eminently likely to lose.

SCOTT LaBARRE: Well, that's true. I was just going to transition to the final point here. At first I would say we were reluctant about the ADA. But then we realized in some ways we had to shape its effects and how it impacted people and shape how the law would be crafted in this area. One of the things we did, and Dan Goldstein here was a great proponent of this, was establish the Jacobus tenBroek Disability Law Symposium in 2007. We also were the leading entity in forming the Disability Rights Bar Association, where we are trying to steer lawyers who practice in the disability rights arena in the right direction. I think that's not exactly as a result of the ADA. But it is as a result of us trying to shape the way the ADA is used as a tool. And Dan, I think I heard you wanted to get in on this. Then we'll have to wrap up in just a minute. But Dan, why don't you give us your thoughts?

DANIEL GOLDSTEIN: Well, I was just going to say that clearly we need more legislation because the ADA does not cover the waterfront. It doesn't require nearly enough in the employment area. Although there's language about methods of administration that discriminate, most judges only understand that it's something about reasonable accommodations in Title I. That makes it very hard to attack. But we need non-litigation methods as well. Tim is absolutely right.

EVE HILL: Yup.

DANIEL GOLDSTEIN: Because most judges will force you to settle. So there are no Target cases in the sense of opinions that we can point to except when we litigate against states. Everybody else ends up settling. And, you know, there are too many websites to be able to litigate them one website at a time. So we'll have to be creative about new and different ways. What I think we can lay credit to up to this point is that we have increased awareness of accessibility and a clearer understanding of disability than existed when we got started. But I don't think by any other measure we can claim what we've done has been a success.

SCOTT LaBARRE: Well, I think you're right, Dan, and I think there's another aspect of this, and I think this is where we can end. But we still have to do a lot of work in this community to make this legal community and the pursuit of disability rights look like the rest of our society. We've realized in the last couple of years that when you look at lawyers who practice disability rights law and you look at the people who have been bringing the cases, in the Disability Rights Bar Association, for example, 86 percent of the attorneys involved are white. There's a real dearth of lawyers of diverse backgrounds right now, and quite frankly there's a dearth of lawyers with disabilities from diverse backgrounds right now. Panel, what do we need to do to change that?

MARC MAURER: One thing I want to say is that I'm proud of your work with the American Bar Association. Because part of what we have to do is get the Bar itself to know that disability rights is a part of the law, and a part of the respected element of practice of the law, and ought to be an element of the Bar Association that gets the respect it deserves. You have brought that into being, and I admire you for doing it. But there has to be a program on the main part of the Bar Association agenda, as there does with state bar associations. We have to get the lawyers to know that disability law is still there, and lots of them have never heard of it.

SCOTT LaBARRE: And it's also a pipeline issue. Lots of lawyers with diverse backgrounds have not been involved in this area, including lawyers with disabilities. But I have hope, and the reason I have hope is by looking at our scholarship class this year. We have five or six people either interested in going to law school or who are in law school. And that class is incredibly diverse. So I have hope for the future. I think we have made some important strides. We've had great victories. But we have just scratched the surface. I know because of the team that we've assembled here, because of the lawyers that we will get involved in this area, and because of our members, we will secure our right to live in the world. And I think, Mr. President, even though this could probably go on all evening and deserves more attention, I think we'll turn it back over to you at this point.

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