by Jacobus tenBroek
From the Editor: The following address was delivered at the American Association of Workers for the Blind convention in Quebec, Canada, in June of 1955. It was first printed in the July 1976 issue of the Braille Monitor. It perceptively analyzes one of the most challenging issues in disability studies.
The topic of this discussion immediately suggests the ambivalence, if not the outright hostility, aroused in most of us by the idea of preferential treatment. If it implies unwarranted favors and advantages, as it sometimes seems to, how is such treatment to be justified with reference to the blind or, for that matter, with reference to any group? If the blind are normal, as they claim, why do they need to be treated differently? If their objective is really social equality and integration, is it not true that preferential treatment serves to perpetuate special status, with all its connotations of inequality and inferiority? Is there anything about the problems of the blind or of blindness which makes necessary or desirable some form of preferential treatment?
"Any class," wrote one blind man, "which demands special privileges soon finds itself a dependent class," and "the blind of America have developed a progressive disease--that of dependency."
We espouse the principle, wrote another blind man, "that the blind are normal and competent people, capable of making their own way, on a basis of equality." At the same time we ask "special concessions and privileges on the basis that we are helpless and unequal." "We cannot have our cake and eat it too, and such measures and propaganda stressing the inequality of the blind are bound to have a most damaging effect upon our primary goal of equality."
Let us begin our analysis of the pros and cons of preferential treatment of the blind at the beginning: that is, by defining the terms used.
Preferential treatment of the blind is treatment which singles out the blind for special favors, advantages, or benefits. In short, it is any special treatment. Preferential treatment may be based on an irrational whim, prejudice, or taste--as when one prefers strawberries instead of blueberries, or when it is said "gentlemen prefer blondes." On the other hand, preferential or special treatment may be based on the possession by the group receiving it of some distinctive talents or unique qualities or peculiar needs having a relationship to a proper public policy or socially desirable objective.
There are no pros, there are only cons, with regard to the preferential treatment of the blind which is founded in irrational whim, prejudice, or taste; and the blind cannot rightly claim, nor do they generally want, mere favoritism, public or private, any more than they claim or want the opposite: discriminatory disadvantage, guilt- or shame-motivated rejection, kindness-inspired overprotection, or unthinking exclusion. The pros and cons of preferential treatment founded in special qualities or needs of the group depend in each individual instance upon three factors: (1) upon a faithful determination and accurate evaluation of the special qualities or needs of the blind; (2) upon a correct appraisal of the public policy or social objective sought to be achieved by the particular preferential treatment; and (3) upon the adaption of means to ends, that is, upon whether the means are proper and there is a close and substantial relationship between the special qualities and needs of the blind, on the one hand, and the policy or objective, on the other.
The other term that must be defined is "the blind." Who are the blind? What is blindness?
The term “blindness” in its literal denotative sense means loss of eyesight; the absence of visual acuity. It refers to a strictly physical condition. The blind, then, are simply those who cannot see. Nothing more, nothing less! The term “blindness,” however, also has a wider connotative sense. In this sense it refers to restricted social and economic contact, opportunity, and activity. To be stripped of eyesight is to be shorn of full-fledged membership in society.
The difference between the denotative and connotative meanings of blindness is exactly that between disability and handicap. Disability refers to a physical deprivation; handicap to the social consequences of that deprivation. The distinction may be seen in the fact that there are many disabilities which carry little or no handicap, such as the chronic laryngitis of Andy Devine, the undersize of jockeys, or the oversize of basketball players. Likewise, there are handicaps with no disability, such as the black skin of American Negroes or the religion of the Jews in Nazi Germany. Disability is properly the concern of medical science. We can do little about the physical fact of blindness except to cure it or live with it. But it is not blindness alone that we live with. We live with other people, which is to say we live in society. It is society which creates and imposes the handicap of blindness, for it consists of the misconceptions of the sighted about the nature of the physical disability. The principal misconception, the one that embodies and epitomizes all the rest, is that blindness means helplessness--social and economic incapacity; the destruction of the productive powers; the obliteration of the ability to contribute to or benefit from normal community participation; in short, the lingering image of the helpless blind man.
Three comments about the social handicap of blindness are particularly in order: (1) To place responsibility for it upon the sighted is not to speak in terms of blame or recrimination. Far from it! The misconceptions are sanctioned by a society motivated mainly by benevolence, wishing above all else to be kind and helpful. (2) Wherever, as happens with increasing frequency, an individual blind person breaks through the social barriers, his success is likely to be attributed to his possession of special genius or compensatory powers (either superhuman or supernatural) which leave the overall image of blindness intact. (3) Public attitudes about the blind inevitably become the attitudes of the blind. The blind see themselves as others see them. They accept the public view of their limitations and thus do much to make them a reality.
Most people exaggerate the physical and underemphasize the social aspect of blindness. Our distinguished and able chairman, Father Carroll, has defined blindness in terms of twenty lacks and losses. I am one of Father Carroll's numerous admirers. But I admire him more for his willingness to prepare a list than for the list he has prepared. It seems to me that he falls prey to the common fallacy. Note what a large percentage of the items on the list refers to the physical fact of blindness and its immediate physical and personal consequences; what a small percentage refers to the broadly social. What may be known hereafter as Father Carroll's Lacks and Losses reads as follows: (1) loss of physical integrity; (2) loss of confidence in the remaining senses; (3) loss of reality contact; (4) loss of visual background; (5) loss of "light"; (6) loss of mobility; (7) loss of visual perception: beautiful; (8) loss of visual perception: pleasurable; (9) loss of ease of written communication; (10) loss of ease of spoken communication; (11) loss of means for informational progress; (12) loss of recreation; (13) loss of technique, daily living; (14) loss of career: vocation, goal, job opportunity; (15) loss of financial security; (16) loss of personal independence; (17) loss of social adequacy; (18) loss of obscurity, anonymity; (19) loss of self-esteem; (20) loss of total personality organization.
I would not have you believe that I underassess the importance of the physical disability. Without sight the range of perception is narrowed. Objects which can be seen from afar must be near at hand to be discernible by other senses. And the blind person who has not scuffed his shins on low-lying implements and toys carelessly left on the sidewalk or stumbled over a curb, or bumped his head on an overhanging awning or branch has never left his armchair. These are undeniably embarrassing or uncomfortable experiences; but they are properly to be classified as minor annoyances or distractive nuisances, like shaving in the morning or removing your glass eyes at night. In my experience, blind people who are willing to move and put one foot out in front of the other always somehow get where they want to go.
In any event, the main point is that the real affliction of blindness is not the physical disability or its immediate consequences but the social handicap. It therefore becomes most important to analyze the precise nature of the handicap. Of what does it consist? What are the elements which compose it? What does it mean to be excluded from society? What are the rights of membership of which the blind are thus deprived?
To answer these questions, one must identify the main features of American society, for it is denial of participation in these which constitutes the handicap of blindness. The process of answering the questions therefore is one of resurveying American social and political thought and constitutional ideals, one of restating the principles, doctrines, and concepts that are contained therein.
The task of restating American social and political assumptions and goals is complicated by a number of facts and factors. Major American social and political principles, such as the dignity of the individual, liberty, equality, and private property, are so intermingled and overlapping that it is difficult to separate any one of them for single treatment.
Emphasis on the various elements has shifted at different periods in our history, in the documents which have embodied and expressed different movements, forces, and times, and among the prominent political writers and speakers. Equality was the dominant note in the Declaration of Independence. Property assumed relatively a stronger position in the Constitution. During the nineteenth century, when fortune and geography gave the nation military safety and free land and the open frontier gave individuals a sense of economic safety, security was assumed and liberty was elevated into a primary position. Today, as Ralph Henry Gabriel writes, "When the traditional foundations of culture crumble,...when government by law gives way to government by irresponsible force, the preoccupation with liberty as an end in itself is replaced by a new search for security, mental, social, economic, and even physical."1
Sometimes, indeed, going far beyond mere shifts in emphasis, the elements are presented as irreconcilably contradictory. Read for example this passage from William Graham Sumner: "Let it be understood that we cannot go outside this alternative: liberty, inequality, survival of the fittest; non-liberty, equality, survival of the unfittest. The former carries society upwards and favors all of its best members; the latter carries society downwards and favors all its worst members."2
Finally, the task of stating American social and political principles is made difficult by the fact that they are not fixed and immutable, as the laws of the Medes and the Persians were reputed to be. To the extent that they are a living reality in a developing democracy, they are constantly growing, maturing, and changing. Every generation, every decade is a formative period in the constitutional life of the nation. In our generation the creative interpretation and application of American social and political principles in the sphere of international organization and in the social and economic sphere are in process.
Yet, despite these difficulties in stating them, the major elements in the set of widely accepted and persistently enduring political principles and social ethics are identifiable and subject to description and characterization. The "easily remembered" formulations can be found in the landmark documents of our history. These documents not only express and embody movements and periods of the past but are as well basic forces of government in the present and for the future. They include the Declaration of Independence, the Northwest Ordinance, the Preamble to the United States Constitution, the state constitutions, the Civil War amendments to the United States Constitution, and the more famous pronouncements of the United States Supreme Court.
(1) Liberty. In American political thought, liberty has many aspects and sources. It is both positive and negative. It is political, economic, personal, and, in a broad sense, social. It is founded by some in positivism; by others in natural law; by still others in moral law. It sets in equilibrium constitutionalism and democracy. In part liberty consists in protection against the will of the majority, no matter how regularly manifested and how lacking in oppressiveness or arbitrariness. In this aspect it is embodied in an array of restraints on governmental action and the organized power of society. The existence of a constitutionally arranged governmental structure and distribution of powers, in fact the existence of a constitution at all, implies a system of limited government.
The Constitution, too, contains many explicit prohibitions on government. Though some exist elsewhere in the Constitution, the Bill of Rights and the other amendments are, of course, a catalogue of these. Among them are the protection given life, liberty, and property, the requirement of established and regular procedures by government, and the guarantee of immunity from unreasonable intrusions into the privacy of one's person, house, papers, and effects. The many safeguards against improper conviction for crime refer not only to the technical aspects of criminal justice, but bespeak the basic right of personal freedom: i.e., freedom to move about as one pleases and to be not subject to surveillance and custodialization by the agents of the state. Likewise, freedom from slavery and peonage is decreed, implying not only self-ownership but free labor and the right to the rewards of labor.
A dominant part of American social and political thought has always been a notion that these rights, thus fixed in the Constitution, are the indivestible possessions of individuals even when not so guaranteed. Whether derived from natural law, moral law, higher law, or various other concepts about the fundamental nature of man and society, this notion has found constant expression throughout our history. Its standard formulation is in the Declaration of Independence: "[T]hat [men] are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." These rights governments were instituted to secure and protect, not to create and confer.3
The concept that rights which are regarded as very important are somehow natural rights or derive from a higher law results from a philosophic view which has lost much of its persuasion and support in recent decades. The Founding Fathers, however, and most American statesmen down through the Civil War period, made it their starting point. Natural rights thus became inextricably woven into the fabric of American social and political thought and popular belief. They lurk just below the surface of many of our state papers, judicial pronouncements, and political orations of today. Of those Americans who do not accept this particular philosophical concept, most still insist upon the great importance and basic character of the rights proclaimed.
So far I have spoken of the constitutional side of constitutional democracy. The democracy side is a positive aspect of liberty. It has to do with the individual's right to participate in government, in the determination of social direction and policy. Its foundation is the doctrine of popular sovereignty and the consent of the governed. Its implementations are the right of suffrage, the right to seek and hold office, and the right of the majority to rule. Its indispensable conditions are freedom of speech, press, and assembly.4
Liberty is positive in another phase besides that of the co-sovereignty of citizens of a republic. Government is responsible for the protection of the rights of the individual. This cannot be wholly achieved by the government itself refraining from invading them. It must prevent others from invading them. It must eliminate and control the conditions which nullify them or make their exercise impossible. It must foster, promote, establish, and maintain the conditions which make their exercise possible and significant. This is especially true if the right is active rather than passive; if it involves doing and not just being; acquiring and not just having; speaking and not just listening. Congress, as Webster declared in his famous debate with Hayne, is under an obligation to exercise the powers delegated to it in the Constitution for the purpose of achieving the objectives set forth in the Preamble of the Constitution--to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity...."5
Men have a right to life, personal freedom, and personal security. They have the right to marry, have and rear children, and maintain a home.6 They have a right, so far as government can assure it, to that fair opportunity to earn a livelihood which will make these other rights possible and significant.7 Men may not be bound to the place of their poverty and misfortune; they may move freely about the country in search of new opportunity.8 They have a right freely to choose their fields of endeavor, unhindered by arbitrary, artificial, and man-made impediments.9 They have a right to enter the common trades, callings, and occupations of the community. They have the right, if they are free, to manage their own affairs as they see fit, unless and until there is interference with the equal rights of others to manage their affairs or there is injury to the welfare of the community.
"It is not enough," wrote the President's Committee on Civil Rights in 1947, "that full and equal membership in society entitles the individual to an equal voice in the control of his government; it must also give him the right to enjoy the benefits of society and to contribute to its progress.... Without this equality of opportunity, the individual is deprived of the chance to develop his potentialities and to share the fruits of society. The group also suffers through the loss of the contributions which might have been made by persons excluded from the main channels of social and economic activity."
(2) The Dignity of Man. Deeply imbedded in this concept of liberty is a democratic view of the individual, of his role in society, relation to the state, essential dignity and worth. It is the individual who possesses rights which are fundamental and inalienable. He is at the beginning and the end of the state. He organizes it and gives it authority. Its powers are conferred to protect his rights and to assure the conditions necessary for their maximum expression. The state exists for his benefit, not he for its. "In democratic society," wrote Charles Merriam, "regard for the dignity of man stands behind the throne of public order, a constant reminder of the need for liberty and justice as well as order, a constant plea that the human personality shall not be forgotten in the multiplications of laws, in the ramifications of administration, or in the antiquarianism of formal justice."10
Democracy breathes respect for all men and seeks to preserve their individuality and autonomy. This spirit is violated wherever men are alienated or sheltered from the mainstream, not only in the overt gestures of rejection but in the sentimental embrace of patronage and protection. Humanity is degraded and individuality disparaged by treatment of the person as a unit in a category determined by irrelevant traits, defined and measured not in unique terms of personal character and achievement but in the stereotype terms of physical or national or racial difference.
(3) The Rights of Property and to Contract. The rights to property and to contract have likewise been regarded as fundamental in the American system. The right to property along with life and liberty is listed as one of the three great rights of all free men in Chapter 39 of the Magna Carta. It appears thus also in the American state constitutions, early and late, in the Northwest Ordinance of 1787, in the United States Constitution, Amendments V and XIV, and elsewhere.11
The rights to liberty, property, and contract are interlocking if not interchangeable concepts. The right to contract is sometimes stated as an incident to the right to property; sometimes as an independent aspect of liberty. Property is described by some as sufficiently broad to incorporate all other rights of individuals, including liberty; and liberty is often regarded by others as broad enough to encompass the right to acquire, use, and enjoy property. The three rights of liberty, property, and contract are thus intimately associated in American thinking.12
Property and contract rights are not unlimited but, on the contrary, are subject to public control in the public interest. They may be abridged and, in some cases, destroyed altogether, if that is necessary to protect the community against injury or danger in any form, against fraud or vice or economic oppression or serious public inconvenience or depression or other disasters. The power to control is coextensive with the social and economic activities of men. It finds its limit in the nature of the acts forbidden or required and its justification in the direct relation of these acts to the public welfare or to the equal property rights of others.
The power of the state over property and contract rights, however, is not merely negative or incidental to the power to legislate for the health, safety, morals, and general welfare of the community. The basic character of the right and the purpose of government regarding it cannot be minimized or ignored. That purpose, as in the case of liberty, is to protect and preserve, maintain, and nurture the right. The power to regulate the use of property and contract, consequently, may not, save in very rare and special circumstances, be converted into the power directly to take property and contract rights. And in discharging its primary and affirmative duty with respect to these rights, the state must keep constantly in view the essential values of private property in our system. It is a central factor in the organization of society. It is an impelling source of motivation. It is a principal incentive for productive activity. It is a reward for labor and contribution. It is at once the object of individual enterprise and success and the means of achieving success. And contract is the form of expression and governing instrument, not only of most business activity, but as well of most of the transactions of daily life.
(4) Equality. Only second to liberty itself in our history has been the ideal of equality. In fact, equality has always conditioned liberty and determined its character just as liberty has always conditioned equality and determined its character. In the Declaration of Independence, the first of the "self-evident truths" is that all men are created equal; and all men are equally "endowed by their Creator with certain unalienable rights," "among which are life, liberty, and the pursuit of happiness."
Alexis de Tocqueville, in 1835, described equality in America as "the fundamental fact from which all others seem to be derived and the central point at which all my observations constantly terminated." In his view it gave "a peculiar direction to public opinion and peculiar tenor to the laws; it imparts new maxims to the governing authorities and peculiar habits to the governed." It "extends far beyond the political character and the laws of the country, and...has no less effect on civil society than on the government; it creates opinions, gives birth to new sentiments, founds novel customs, and modifies whatever it does not produce."13
Equality, even more than liberty, stood in the forefront of the historic struggle in the nation to abolish property in man and the institution of slavery; and, along with liberty, emerged in the Civil War amendments to the Constitution. The Thirteenth Amendment, freeing men from slavery and nationalizing the right of freedom, nationally guaranteed what slavery denied: the equal right of all to enjoy protection in those natural rights which constitute freedom. The Fourteenth Amendment, in the three redundant clauses of Section 1, re-embodied these same objectives and added an explicit guarantee of the equal protection of the laws, thereby adding another confirmatory reference to the self-evident truth that all men are created equal and are equally entitled to the protection of government in the enjoyment of their natural and inalienable rights.14
Like liberty, equality has many phases. One of them relates to the doctrine of proper classification. The laws must be aimed at the achievement of a public and constitutional purpose. They may not be motivated by hatred, vengeance, favoritism, or private gain. Legislation framed with a discriminatory purpose, manifesting "an evil eye and an unequal hand," contains an elementary antagonism to the idea of the equality of men. Once legislation is endowed with a public and constitutional purpose, it still must meet other tests. Because there are real differences among men, regulation would be altogether ineffective if it had to apply to all or none. The law must therefore be selective. But to be equal, it must treat all those similarly situated alike. The differences between men that underlie selection must be real differences and must bear an intimate relationship to the purpose of the law and valid social goals. All other differences are irrelevant and must be ignored. "Class Legislation," said Justice Field in summing up this doctrine, "discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment."15
Another phase of the idea of equality is the rule of law. If all men are created equal and equally possess certain rights, and if governments are instituted to secure and maintain those rights, and men therefore are equally entitled to such protection, the protection can only be afforded by uniform rule, that is, by law. One way of putting this is the expression: "Equality before the Law." Another way is in the celebrated words of the Massachusetts Bill of Rights: "That the government of the Commonwealth may be a government of laws and not of men." Thus, in this aspect, the doctrine of equality is in effect a command that the government act by established and regular procedures and by uniform rules. It is a command that the purely personal, arbitrary, capricious, and whimsical be reduced and eliminated from the exercise of power. It is a command that the rules be fixed and announced in advance in a way which will make them freely and publicly available. It is a requirement of a degree of certainty and predictability in government action and of a system of rights growing out of uniform rules. It is finally an order that administrators as well as legislators act within these confines.
In still another phase, equality is not negative and procedural but positive and substantial. Anatole France referred to "the majestic equality of the laws which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." But the demands of equality are not met by the equal treatment which results from the absence of the laws or from the indiscriminate application of the laws to those who are dissimilarly situated. Moreover, the demands of equality are not exhausted by the doctrine of classification and the rule of law. The equal protection of the laws refers to the quality of the laws as well as to the mechanics of their operation. The reign of equal laws involves as well the reign of just laws, and the maintenance of equality in the enjoyment of rights is at the heart of the system of justice. Equality thus must be the very purpose of governmental action and policy as well as a test and measure of its means. It must "give direction to public opinions," determine the "tenor of the laws," impart "maxims to the governing authorities," and modify "whatever it does not produce."
Particularly is the government under a duty to guarantee equality of opportunity. Without that, freedom itself cannot last and becomes an illusion. The only aristocracy that a system founded upon equality can tolerate is an aristocracy of personal merit and achievement. Uniformity and regimentation, on the one hand, and status; influence; and power based on birth, social position, or inheritance, on the other hand, are equally incompatible with equality. Equality of all men presupposes respect for the rights of others. In a society of equals, therefore, men are free to be different. All limitations on opportunity, all restrictions on the individual based on irrelevant differences of race, color, religion, national origin, sex, and the like, are in conflict with equality and must be removed and forbidden. Access to the mainstreams of community life, the aspirations and achievements of each member of society, are to be limited only by the skills, energy, talents, and ability he brings to the opportunities equally open to all Americans.
From what I have said so far, a number of propositions emerge:
(1) Preferential treatment of the blind based on favoritism, privilege, whim, prejudice, patronage, pity, charity, self-interest of others, or feelings of like or dislike cannot be justified and indeed does a great deal of harm. On the other hand, preferential treatment which takes account of the special qualities or needs of the blind or aspects of their situation not shared by others, which is aimed at a desirable social objective and which employs proper means properly adapted to this purpose, is not only justifiable preferential treatment but is treatment which should be at the foundation of all public and private policy toward the blind.
(2) Blindness has a dual aspect: the physical and the social. The first is the disability; the second is the handicap. Treatment of the disability is a medical task. Overcoming the handicap is the function of rehabilitation.
(3) The handicap consists mainly of the misconceptions of the sighted about the physical disability which result in social exclusion. In all but the physical sense, and even to some extent in that, it consists of a loss of full membership in society; a denial to the blind of the rights and goals which others share--liberty, equality, property, dignity.
(4) Overcoming the handicap of blindness, therefore, means removing the bars, exclusion, and denials of which the handicap consists: conferring on the blind the title deeds of social freedom and membership; the rights of liberty, equality, property, and dignity; in short, their reintegration into society.
(5) Programs which address themselves to this purpose or which move in this direction, while they necessarily involve preferential treatment, meet all the tests and standards set up for good policy. Such special arrangements might better go by the name of equal treatment. Indeed, to lift from the backs of the blind the special, heavy, and unnecessary burdens which society has caused them to bear and to call this preferential treatment can hardly be regarded as anything but the bitterest irony. Programs which move in the opposite direction, which accept and build upon the public misconceptions about the nature of the physical disability, which presuppose the incapacity and abnormality of the blind, and which institutionalize that presupposition in segregation and custodialization--all programs, in other words, which continue or intensify social exclusion or which are motivated by patronage, charity, whim, prejudice, or self-interest--involve preferential or special treatment which increases the handicap. They perpetuate the very attitudes and conditions which they should be designed to prevent.
(6) Preferential treatment is also justified which: (a) tends to ameliorate the immediate physical consequences of the physical disability of blindness; or (b) pending the day when integration has been achieved, mitigates the financial and other consequences of social exclusion or offsets the disadvantage resulting therefrom by means which do not further entrench the public misconception or which do so as little as possible.
(7) To be consistent with the standards dictated by the basic principles of our social, political, and constitutional system, programs for the blind must:
(a) Allow the blind to manage their own personal affairs and proceed on the assumption that they are capable of doing so.
(b) Not only permit the blind, but stimulate and encourage them to develop their potentialities, share in the fruits of society, and contribute to its work and progress.
(c) And to do this, not only permit, but stimulate and encourage the blind to work, to engage in individual enterprise, to exercise free judgment and free movement in the search for opportunity, freely to choose their fields of endeavor and to enter the common callings, trades, occupations, and professions of the community.
(d) Stimulate and encourage the blind to do these things by relying on the normal incentives, principal among which are financial remuneration and the improvement of one's economic lot and social status.
(e) Permit, stimulate, and encourage the blind to acquire, enjoy, and use property (real and personal), not just for immediate consumption purposes, but as a motivational source of endeavor and a means of economic improvement.
(f) Protect the essential dignity of the individual: by recognizing the worth of the human personality and treating it as a community asset rather than a community liability; by supplying aids and services without humiliation, without undue intrusion into the privacy of the recipient, without imposing upon him the badges and indicia of a needy and special status, without subjecting him to the personal judgments of social workers influenced by humanity, charity, approval, or other emotions; by making possible a standard and circumstance of living not conspicuously different from that enjoyed by the rest of the community; by leaving recipients free to make their own decisions as to spending, living arrangements, and personal matters.
(g) If the demands of equality are to be met, public financial aid must be granted as a matter of right, the element of personal discretion exercised by administrators and welfare workers must be eliminated, the amount and conditions of the aid must be specified in uniform rules made accessible to recipients and prospective recipients and sufficiently exact so that recipients may determine to what they are entitled and what their responsibilities are. Legislative and administrative standards must be established which are uniformly applied, which treat all welfare recipients alike who are similarly situated with respect to a valid purpose of the welfare law, and which vary the amount and the condition of the grant when there are real differences among recipients in terms of their relationship to the welfare program. Finally, equality requires--as do liberty, the dignity of the individual, and the essential notion of property--that the purpose of the welfare law be opportunity as well as security. Relief rolls should provide relief; but they must also provide the means of escape from them. Reintegration into society through open and equal access to the mainstream of community productive activity must be an object of welfare law and a measure of its adaptation if the fundamental political and constitutional principles of our system are to be honored in the fact as well as held out in the promise.
Measured by these standards, evaluated in the light of these considerations, how do our programs and provisions for the blind prove out? The answer must be mixed. Some programs are well adapted to these principles; others poorly; and still others are in flat contradiction of them. Unfortunately, some of the most important programs fall into the latter two categories.
The rapidly growing and recently created system of orientation and adjustment centers--focusing on mobility training, personal care, prevocational manual skills, and the development of attitudes which make these other activities possible and fruitful--are properly oriented and adjusted to reduce the immediate physical consequences of the disability of blindness, to uproot the conviction of incompetence, and to impart self-confidence, hope, and a zest for living.
The home teacher system, though hampered by the need to deal with the blind person in his home and then only in occasional short visits, substantially moves in the same direction as the orientation center. It is most effective when used as a case-finder for the center and otherwise works in close collaboration with it. It is least effective when it emphasizes handicraft as mere busy work or when it teaches Braille to clients who will never have any use for it.
White cane laws, now enacted in almost all the states, by giving the blind a legal position in traffic and moderating the discriminatory harshness of the contributory negligence rule, make meaningful for the blind the human and constitutional right of free movement, just as the cane itself makes more meaningful the physical capacity of free movement.
What about good vision requirements established in many laws and regulations dealing with jobs, licenses, and the like? Some of these are, of course, perfectly in order. Where sight is indispensable to the performance of the task- -as in hunting with a gun, driving a truck, or working as a photographer of wildlife for the National Park Service--the blind are legitimately excluded. Where sight is not indispensable, as is the case in thousands of jobs public and private from which the blind are now barred--the continued exclusion of the blind can have no special justification. In many of these cases the bars remain up because those who tend them have only their misconceptions to guide them.
Laws and regulations giving preference to blind persons with respect to jobs are not mere favoritism if they are based on the special qualifications of the blind to perform the tasks assigned. This is clearly so when the blind are called upon to work in or administer programs affecting the blind. In that circumstance blindness is an enabling asset endowing the worker with special knowledge, experience, and the confidence of his clients which probably cannot be secured in any other way than by being blind. Of course this enabling asset should be given determinative weight only when other things are equal. For the blind to be given preference in other situations in which blindness does not contribute to the ability to do the work would be as unjustifiable as to discriminate against the blind in jobs in which blindness does not detract from the ability to do the work.
What about vending stands for which the blind are given rent-free locations on public property, in connection with the establishment of which they are given a preference and protection against vending machine competition, and with respect to the operation of which blindness is not an enabling asset? These special arrangements will not withstand merited criticism once the blind have achieved a footing of complete economic equality. Until that time arrives, however, the vending stand program is preferential treatment which is justified as a small offset to almost universal economic discrimination against the blind; and one in which bona fide jobs are provided for qualified blind workers at comparatively negligible cost to the public; and one in which the blind are presented to the public in an aspect of competence and normality.
If the management of the vending stand programs is to be consistent with the standards above discussed, it must keep supervision and control at an absolute minimum; allow the operator to purchase his stand and equipment with only an option to repurchase by the public; give the operator complete independence in the management of his business affairs, retaining only the power to revoke the license if the operator proves incompetent or becomes publicly obnoxious; protect the operator's profits against confiscation for the support of supervisory personnel or submarginal stands which the administrators have mistakenly established in unprofitable locations. The control system, on the contrary, reflects the custodial attitude toward the role and the abilities of the blind, a conviction that the blind are incapable of running their own business and incompetent to lead their own lives.
Let us turn next to public assistance. Liberty in the direction of one's affairs, the whole basic principle of self-management, is violated by the means test. Under it, the individual recipient soon loses control of his daily activities and the whole course and direction of his life. The capacity for self-direction presently atrophies and drops away. With each new item budgeted or eliminated, with each new resource tracked down and evaluated, the social worker's influence increases. This is an inevitable concomitant of the means test. It results from the nature and extent of the system. It is bred and nourished by the provisions of the statutes and the rules issued under them. It is in the flexible joints of the cumbersome machinery. It is in the detail and intimacy of the investigation. It is in the inescapable confinements of the budget. It is in the idleness, defeatism, and waning spirit of the recipient. Whatever the social worker's wishes and intentions, her hand becomes the agency of direction in his affairs. The "concern of assistance with the whole range of income," wrote Karl DeSchweinitz, "always contains a threat to the freedom of the individual. Even when there is no conscious intent to dictate behavior to the beneficiary, the pervasive power of money dispensed under the means test may cause the slightest suggestion to have the effects of compulsion. `Whose bread I eat, his song I sing.'"16
Not only is liberty violated by the means test, but so also are dignity and equality--and for many of the same reasons. Dignity is jeopardized by the initial financial investigation; by the searching inquiry into every intimate detail of need, living habits, family relations; by the setting up of a detailed budget of expenditures subject to repeated examination and review; by the continuously implied and often explicit threat that if behavior is uncooperative or unapproved, aid will be reduced or stopped, by the wholesale substitution of agency and social worker controls for the personal direction of personal affairs; by the unwarrantable intrusions into privacy involved in each of the foregoing and the galling humiliation of the whole process; and, finally, by the constant tendency of the whole system to push living standards down below a minimum of decency and health.
The excessive individualization of the whole design and process of means test aid is fundamentally antithetical to the idea of equality. A system which makes so much depend upon a minute examination of every aspect of the individual's situation necessarily involves personalized judgments by officials and invites arbitrary and whimsical exercises of power, prevents the enforcement of a uniform rule even when the legislative provisions and administrative regulations are detailed and exact, renders it impossible for the recipient himself to determine to what he is entitled, constitutes the very thing intended to be prevented by the idea of "a government of laws and not of men," and flies in the face of basic requirements of proper classification. Since with respect to the purposes of public assistance law most individuals are parts of groups standing in the same relationship, those who are similarly situated are not treated alike and real differences are frequently disregarded.
Means test aid also violates the notion of individual opportunity, access to the mainstream of community productive activity, and normal incentives. Since means test aid requires that all income and resources of the recipient be applied to meet his current needs and since the public assistance grant is reduced by the amount of any such available income or resources, the usual financial motive for effort and endeavor is removed from the recipient unless the recipient can gain enough and with sufficient certainty to be independent of the relief rolls.
Granting aid as a matter of right contradicts practically all of the tendencies inherent in the means test and produces a system more consonant with the political and constitutional assumptions and goals of American democracy.
Aid as a matter of right requires the establishment of fixed and uniform rules specifying the terms and conditions of the grant. Thus the principal features of the system must be laid down by the legislature. This contrasts with the means test variable grant, based on individual need individually determined by the administrative agency under discretionary authority conferred by the legislature. Those who are similarly situated are therefore necessarily treated alike and under standards comparable with those governing assistance to other groups in the community.
Granting aid as a matter of right protects the liberty of the individual to manage his own affairs and conduct his daily life free of authoritarian controls and caseworker supervision. It protects the dignity of the individual. He is treated as a member of a class entitled to be dealt with in a manner determined by law, not by individualized administrative discretion. The occasion is eliminated for invasion of the individual's privacy, supervision of his personal behavior, and humiliating probing into the intimacies of his life; and a seminal principle is established which stands as a barrier to all such actions.
Finally, rehabilitation. The primary task of vocational rehabilitation, as I have said, is the overcoming of the social handicap--not the physical condition. It consists in the creation of an environment within society, within public programs, and within the blind themselves, which will be in the fullest sense conducive to normal livelihood and normal life. It involves opening up the channels of social participation, that is, enabling the blind to enjoy the benefits of socially determined standards of liberty, equality, property, and dignity. Its time-tested tools are vocational orientation, vocational training, counseling, and guidance which stimulates and opens up horizons--and finally, of course, placement in remunerative employment in the common callings, trades, pursuits, and professions of the community.
In the proper conceptions of its function as well as in the use of these time-tested tools, the vocational rehabilitation program of the United States must in large measure be pronounced a failure. The hope and opportunity are to be measured in miles; the actual accomplishment must be measured in inches.
Rehabilitation so far as the individual rehabilitant is concerned is a complex process in which mental and emotional elements are predominant. It involves myriad adaptations not merely physical in nature but social and psychological. In effect, the entire personality must undergo reconstruction; the blind person's conviction of his own incompetence, accepted from the public misconception, must be uprooted; a rebirth, a new act of creation must be wrought. In this process ambition, hope, and self-reliance are essential ingredients. Consequently, rehabilitation by the command of the counselor or submission to his attitudes and preferences or by the coercion which results from conditioning public assistance upon it is a contradiction. It is therefore futile. It is as futile as ordering a person to restore his emotional balance while adding to the very factors which cause the unbalance.
Since the objective of rehabilitation is restoration to a normal useful role in society, the standards of success are in large measure culturally determined. The rehabilitated person, thus, is one for whom the assumptions and goals of the community have become as significant as for others, who has in fact achieved equal opportunity to enter the calling of his choice; to acquire, use, and dispose of property; to exercise the right of personal independence; and to operate on the other assumptions and principles before listed. Just as the habits of freedom are not learned by experiencing slavery, so ambition is not learned by destitution, self-management by authoritarian controls, incentive by denying the hope of gain, or self-respect by second-class citizenship. Rehabilitation by command or coercion cultivates the very traits which frustrate and prevent rehabilitation. A rehabilitation program which continually impresses upon the client a sense of his helplessness and dependency; which enshrouds him in an atmosphere of disbelief, doubt, and defeatism; and which exhibits attitudes of guardianship and custodialism must inevitably sap the fiber of self-reliance, undermine hope, deter self-improvement, and destroy the very initiative which is indispensable to rehabilitation.
Rehabilitation by stimulation, by opening up new horizons, by assisting the client in the achievement of goals of his own choice, by incentives carefully planned to encourage productive activity by the expectation of normal rewards--retention of earnings, improvement of standards of living, accumulation of real and personal property--places rehabilitative effort in conformity with the political assumptions, economic impulses, and behavioral standards imposed by democratic thought and current social knowledge.
Optimistic and skillful counseling, built on personal experience with the handicap and its problems, is required to accomplish this delicate work. Under the present program such counseling has not been supplied. On the contrary, too often rehabilitation officers have themselves subscribed to the conviction of the incompetence of the blind. Little has been done under the present program to halt the tendency of shunting the disabled into a limited series of stereotyped occupations, to provide a staff which will have and exhibit full confidence in the blind, and which will aid the blind to enter fields of their own choosing. Little has been done under the present program to strengthen placement as an inescapable function of the rehabilitation agency. For the blind this is the arduous culmination of a long and arduous process. It cannot be accomplished by automatic referral to employers. It can only be accomplished by the application of highly specialized and individualized techniques of affirmative contact with employers, aggressive seeking of employment opportunities, personal demonstration, and follow-up.
Little is done under the present program to remove the obstructions to employment of the physically handicapped which exist in the public mind, in the statutes, ordinances, administrative rulings, judicial decisions, and institutional practices. Above all, the true nature of the handicap and the elements which compose it, particularly the social and the psychological as distinguished from the physical and medical elements; the proper functions and goals of rehabilitation; the relationship of disability to dependency, especially economic dependency; the part presently played and properly to be played by public financial aid under social insurance and public assistance in the process of rehabilitation; the determinative character of the reintegrative objective and the bearing upon it of liberty, equality, property, and dignity--these basic and urgently pressing questions have never been sufficiently analyzed by the responsible officials in vocational rehabilitation.
Until this whole pattern is changed, until a great deal is done to reorient the training and functions of rehabilitation workers; to strengthen guidance and counseling services; to improve techniques and focus rehabilitation attention on the placement of rehabilitants in competitive employment; and to remove legal, administrative, and other obstacles to the employment of the blind in the public service, the trades, professions, and common callings of the community--until that happy day, rehabilitation of the blind is likely to continue to be measured in inches and not in miles.
Americans are familiar with the unhappy divergence between creed and conduct in many phases of our national life. Myrdal's observation of the disparity between social equality as a cherished political norm and our unequal treatment of the Negro is but one instance of a pattern that is all too pervasive. The field of blind welfare provides another, one which has been less noticed but is not less conspicuous or significant.
1. Gabriel, The Course of American Democratic Thought 22 (1940).
2. Sumner, The Challenge of Facts and Other Essays 25 (Keller ed., 1914).
3. For illustrative statements of this doctrine see Johnson and Graham's Lessee v. McIntosh, 8 Wheat 543,572 (U.S. 1823); Story, Misc. Writings 74 (1835); Justice Matthews in Yick Wo v. Hopkins, 118 U.S. 356 (1886); Justice Cordozo in Palko v. Connecticut, 302 U.S. 319,325,328 (1937); see also Justice Murphy dissenting in Yamashita v. Styer 327 U.S. 1, 26 (1946).
4. Winston Churchill speaking at Fulton, Missouri, March 1946.
5. Under the general power of the states, often called the "police power," wrote Justice Barbour in City of New York v. Miln, 11 Pet. 102, 139 (U.S. 1837), "[I]t is not only the right, but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare...." Said Justice Field in Barbier v. Connolly, 113 U.S. 27, 31 (1884), "[N]either the [Fourteenth] amendment--broad and comprehensive as it is--nor any other amendment, was designed to interfere with the power of that state...to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity."
6. See Meyer v. Nebraska, 263 U.S. 399 (1923).
7. Truax v. Raich, 239 U.S. 33, 41 (1915). Justice Hughes there said, "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the amendment [Fourteenth] to secure."
8. Edwards v. California, 314 U.S. 160 (1941).
9. Truax v. Raich, supra note 7; Allgeyer v. Louisiana, 165 U.S. 578 (1897).
10. Merriam, The New Democracy and the New Despotism 84-85 (1939).
11. Justice Chase in Calder v. Bull 3 Dall. 386 (1798); Chancellor Kent, 2 Kent Comm. 1 (1827).
12. Braceville Coal Co. v. People, 147 Ill. 66 (1893).
13. DeTocqueville, Democracy in America 3 (1945 ed.).
14. TenBroek, Antislavery Origins of the Fourteenth Amendment (1951).
15. Barbier v. Connolly, 113 U.S. 27 (1885).
16. DeSchweinitz, People and Process in Social Security 56-57 (1948).