Braille Monitor                                             June 2015

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Civil Rights and the Disabled: A Report from the Department of Justice

by Vanita Gupta

Vanita Gupta delivering the keynote address at the 2015 Jacobus tenBroek Law SymposiumFrom the Editor: The Jacobus tenBroek Law Symposium brings together leading disability rights advocates from around the country, and among the speakers at this year’s symposium was Acting Assistant Attorney General Vanita Gupta. She delivered the keynote address on March 26, and here is what she had to say:

Thank you for having me. It’s an honor to speak to such a committed, smart, and creative group of advocates. While I am relatively new to the Civil Rights Division and to the disability rights movement, we at the Civil Rights Division—and I in particular—are proud to be your partners in the ongoing fight for civil rights for people with disabilities. The division really is energized to do disability rights work, and it is one of my highest priorities.

This year we will celebrate the twenty-fifth anniversary of the Americans with Disabilities Act (ADA) and the fortieth anniversary of the Individuals with Disabilities Education Act (IDEA). We’ve made a lot of progress since then. But, as President Obama once said, “As long as we as a people still too easily succumb to casual discrimination or fear of the unfamiliar, we've still got more work to do.”

As you know, disability discrimination is alive and well in this world. We at the Civil Rights Division and you in this audience take on flat-out discrimination every day of the week. We also take on more subtle forms of discrimination that have effects just as devastating as the more obvious forms of discrimination. And regardless of the form disability discrimination takes, it damages not just those it directly affects, but our entire community. As a community we cannot afford not to include people with disabilities in every aspect of life.

Some of the obvious examples of discrimination that we still confront include:

Some more subtle examples of discrimination happen in some of the most important areas of life—parenting, the internet, education, criminal justice, community living, and employment:

We investigated and, together with the Department of Health and Human Services, found that DCF was violating the ADA in discriminating against the mother because of her disability. We demanded they provide the reunification services available to all other parents, as well as any services needed as reasonable modifications and compensatory damages. Two weeks ago, after over two years of separation, the grandmother was awarded guardianship, and the child was returned to her family. Our discussions with the state are continuing.

As you know, the growing reliance on the internet and other technologies for access to everything from groceries to education to employment has great potential to be an equalizer for people with disabilities—but only if those technologies are built accessibly. The National Federation of the Blind, Disability Rights Advocates, Lainey Feingold, the National Association of the Deaf, and others in this room have been leaders in demanding accessibility of websites and other technologies from the beginning, and we are proud to have joined in that work. We’re addressing accessibility of technology in settlements with colleges like Louisiana Tech, which will now buy only instructional technology that’s accessible, and with public accommodations like Peapod online grocery delivery service, which will make its website accessible.

We’ve also recently included reviews of state and local governments’ websites in our Project Civic Access compliance review programs, requiring jurisdictions like Nueces County, Texas, to make their websites compliant with the Web Content Accessibility Guidelines 2.0. And, in compliance reviews of public entities’ hiring practices, we’ve made them stop asking pre-employment questions about disability in their online job applications and required them to make those online applications compliant with WCAG 2.0.

We recently reached agreement with Quinnipiac University for placing a student on mandatory medical leave after she considered suicide, without considering other ways of accommodating her education while she sought treatment, such as allowing her to take classes—in person or online—and live off campus.

We’re also transforming how police departments and prisons deal with people with disabilities. You’ve heard a lot in the news lately about police response to young black men, racial profiling, and excessive force. We do those cases. But what you may have heard less about is police response to people with mental illness and other disabilities. It has been reported that half the shootings by police each year are of people with disabilities.

We have taken on this issue in our ADA enforcement because too often we’ve found police coming to help someone with mental illness, but the person is in crisis and can’t follow directions. Too often police officers do not have the training to respond to people with mental illness. As a result officers called to help someone may end up injuring or killing the person because of the tragic confluence of circumstances. So last year we reached agreement with the Portland, Oregon, Police Bureau to reform its response to people with mental illness.

We’re seeing the results already. Just a month or so ago, according to the local Portland paper, police officer Zachary DeLong was called to a burglary report. He found a man on the ledge of a hotel five stories up. He opened the window of the hotel room, and here’s what he said:

“I peeked around the window, and he was right there, less than twelve inches away from my face,” DeLong said. “It actually made me jump back a little bit.” “The man was crying, sobbing,” DeLong said. That's when DeLong's crisis intervention training kicked in, he said. There was no crime being committed; it was time for compassion.

He began to calmly talk to the man, assuring him from the start that he was not in trouble. “I told him, 'We just want to help you out, but to do that we need you to come inside.'" The back-and-forth seemed to work. The man inched closer to the open window, while DeLong repeatedly assured him that he and Hall were there to help.

Slowly the man moved closer to the open window until he was close enough to touch. Both officers reached out, each grabbing an arm, and pulled the man into the room through the window. The rescue couldn't have lasted more than a minute or two, DeLong said. Once inside, it became clear the man was clearly in a mental health crisis and also intoxicated.

Paramedics from the Portland Fire Bureau were also in the room and later took the man to a hospital for mental health treatment, police officials said. He was not charged with any crime. “He was at the point where he wouldn't have lasted very much longer on the ledge,” DeLong said. Hall and DeLong later learned that the man had crawled out on the narrow ledge on the building's west side and then side-stepped his way nearly one hundred feet around to the building's south side. “It's scary to think about what could have happened,” DeLong said.

Just a year ago, that call might have ended very differently. Just a year ago, many calls in Portland just like that ended up with the person on the ledge injured and in jail, or dead. But our settlement has helped prevent needless tragedies because it requires the Crisis Intervention Training that Officer DeLong relied on to help successfully resolve this situation.

In prisons we’ve long challenged unconstitutional conditions of confinement. We’ve also recognized the importance of ADA compliance in prisons and jails, particularly regarding the treatment of prisoners with mental health conditions or other disabilities. So in Pennsylvania we’ve issued a letter of findings identifying the state’s use of solitary confinement and failure to provide treatment for people with serious mental health conditions as both unconstitutional and violative of the ADA. And we’ve challenged the overuse of solitary confinement on juveniles with disabilities in California and Ohio.

You may have heard about our Olmstead enforcement work. The Justice Department is very committed to the civil rights principle of community inclusion for people with disabilities. The ADA requires state and local governments to provide services to people with disabilities in the most integrated setting appropriate for each person. Olmstead has been called the Brown v. Board of Education of the disability rights movement. It says separate isn’t equal, and unnecessary segregation is discrimination.

I’m proud to say the Justice Department and disability advocates and lawyers across the country are transforming the paradigm of services that states provide to people with disabilities from one that assumed that people with disabilities were not capable of living in, benefiting from, and contributing to the outside community and that assumed that it would be cheaper to serve everyone in one place. Because of those assumptions, state systems were set up so that people with disabilities had to go to an institution—and be segregated and interact only with other people with disabilities—or they had to go without.

But those assumptions about how best to serve people with disabilities are wrong. First, the cost assumption is wrong—community-based services cost less than institutional ones. And we can serve just about everybody, no matter how complicated their needs, in the community. Second, we know that people with disabilities benefit from community inclusion. Community involvement helps people with disabilities—it avoids learned helplessness, stimulates intellectual growth, develops social skills, and increases self-esteem. This shouldn’t surprise us. A person learns to live in the community by living in the community. And we all need supports—family, friends, guides, maps, Google—but we don’t learn the community by staying in our room. Integration of people with disabilities also helps the community. Community members learn to accept differences, improve communication skills, and learn from the diversity of experiences of people with disabilities.

So, through our Olmstead enforcement, we’re transforming state service systems from ones that force people into institutions to ones that focus on services provided in a person’s home—whether it’s their family’s home, or their own home, or a small group of roommates.

Since 2009 we’ve reached transformative settlement agreements with the states of Georgia, Delaware, Virginia, New York, New Hampshire, and North Carolina. Under these agreements the states must develop community-based services for people with mental health and developmental disabilities and transition people from institutions into the community. These agreements are helping approximately 46,000 people with disabilities reenter or stay in their communities.

At first our Olmstead work focused on where people live. But community integration doesn’t end at the door to your apartment. The fact that a person sleeps in the community at night will not mean much if they spend their days in an institution. So we are now applying the community-integration lens to other areas of life, including school, work, and day programs. Last year we reached an agreement with the state of Rhode Island to transform its employment and day services for people with intellectual and developmental disabilities from one that sent people to sheltered workshops to one that supports people with disabilities in real jobs for real wages.

You can read about Stephen, Pedro and Louis, some of the people who have benefited from our Rhode Island settlement, on our Faces of Olmstead page on <www.ada.gov/olmstead>. Louis just completed his probation period at work. He earns far more than minimum wage, receives full benefits, and is a union member.

And you can read about Peter Maxmean on the front page of the Sunday New York Times from December 7, 2014. That article tells how, since leaving the sheltered workshop, Peter found a good-paying job, learned to drive, got his license, bought a car (and got his first parking ticket on the day of our press conference), got engaged, and got married.

We at the Civil Rights Division understand that our enforcement work alone can’t change the world. For that reason we’re working with other agencies to address disability discrimination through guidance and coordination of federal programs. In November 2014, together with the Department of Education, we released a Dear Colleague Letter to public schools across the country explaining that the effective communication requirements of the ADA are not subsumed within the special education requirements of the IDEA. That guidance made clear that in some instances a school may need to provide auxiliary aids and services to ensure equally effective communication to a student with a disability that are not required under the IDEA.

In our employment-related work we are also working closely with other agencies. The Civil Rights Division is co-leading the Curb Cuts to the Middle Class Initiative, which is a group of eleven agencies working together to coordinate and leverage resources across the federal government to increase middle class employment for people with significant disabilities. Already the Curb Cuts Initiative has helped organize a White House Champions of Change event and a White House Summit on employment of people with disabilities. Over the next few months, the initiative will be:

We have some unprecedented opportunities before us right now to level the playing field for people with disabilities in all areas of life. But it will take all of us working together. Working with all of you, as well as with other federal agencies, service providers, and the private sector, the Civil Rights Division stands ready to do its part to break down the barriers faced by people with disabilities.

Mother Teresa said, “I alone cannot change the world, but I can cast a stone across the waters to create many ripples.” I rarely encourage people to cast stones, but I look forward to creating ripples—even waves—of equal opportunity with all of you. Thank you.

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