- The Department of Justice and Us
More on these stories:
Willie Johnson's problems in prison
Bill seeks to exempt prisons
National Federation of the Blind "opts out" of DOJ settlement
Articles last spring in Mouth and Ragged
Edge reported on critics who say the U.S. Department of Justice, the agency
empowered to enforce the Americans with Disabilities Act, follows a policy
of compromise and negotiation rather than active litigation.
This month, Ragged Edge readers Ed and
Toni Eames report their experiences with the Department.
by Ed and Toni Eames
Ed and Toni Eames are longtime disability activists and members of
the National Federation of the Blind.
Based on our experiences with the Department of Justice, we can only
agree with reports that the Department shows a basic lack of concern with
the real issues of the disabled community and the need to implement the
ADA.
For an agency designated to enforce the ADA, the Department of Justice
seems to share many of the ableist attitudes of the general public. As
articles have reported, the agency doesn't accommodate the disability-related
needs of its employees; few higher level supervisors are disabled.
The agency's attitudes have also become clear to us in several ADA issues
in which we've been directly involved.
Prisoners' rights
In 1990, Willie Lee Johnson, a fellow member of the National Federation
of the Blind of Fresno, shot and killed an unwelcome guest who refused
to move out of his house. Johnson, who's legally blind, was jailed, tried,
found guilty and sentenced (15 years to life). After sentencing he was
moved to New Folsom Prison, a maximum security facility near Sacramento.
Although never in trouble with legal authorities before, he was considered
a security risk because he listed his occupation as locksmith!
Like many other prisoners, Johnson wanted to file appeals against what
he believed was a gross miscarriage of justice. He wanted access to the
law library at the prison to obtain legal information. Because of his blindness,
Johnson was unable to read print unless it was enlarged. He is also a braille
reader, but few law books are available in this medium. When Johnson requested
accommodation through the provision of enlarging equipment or readers,
the librarian and warden refused to consider the request.
At Johnson's request, we contacted a representative of the California
Department of Corrections, who told us that Johnson had the same opportunity
to use the library as all other prisoners - and that if, because of his
reduced vision, he had difficulty finding the books he needed, a library
assistant could help him find them! We were taken aback by this absurd
notion of reasonable accommodation and accessibility. How, we asked her,
would Johnson be able to read the material once found? We were told that
this was not an issue of concern to the Dept. of Corrections.
Following this infuriating encounter and with Johnson's blessing, we
contacted the Department of Justice. We were asked to file a formal complaint
under Title Two of the ADA. We did - in January 1992. In addition to lack
of access to the law library, we noted lack of educational and work opportunities
for Johnson and other blind prisoners.
The Department assigned Richard Waters, an investigator in Washington,
DC, to follow up the complaint. In October 1992, after many phone conversations,
Waters visited Vacaville prison where Johnson had been transferred - it
was a medical facility and many disabled prisoners were housed there. Waters
investigated Johnson's complaints, as well as those of other blind prisoners.
During this inquiry, Johnson was interviewed twice and Waters spoke with
20 other blind prisoners.
After this investigation, Waters met with the warden of Vacaville and
his staff, as well as with the deputy director of the California Department
of Corrections, and his staff. All agreed there were violations of blind
prisoners' rights. Waters was asked to prepare a statement detailing the
results of his investigation and to make policy and procedural recommendations.
The Department of Corrections said it would await direction from the Department
of Justice.
In January 1993 - a year after the official complaint was filed - we
spoke with Waters about progress. His report was finished, he said, and
the California Department of Corrections was willing to cooperate in implementing
his recommendations.
However, his superiors at the Department of Justice were in no hurry
to settle the matter. We got the impression he was as frustrated as we
were.
Johnson's case received a blow when a class-action suit was brought
against the California Department of Corrections by a group of physically
disabled prisoners and Justice notified us they were turning Johnson's
case over to the lawyers representing the physically disabled prisoners
in that case.
By not pursuing Waters' report and preliminary settlement, the Department
of Justice abandoned a clear-cut example of discrimination based on blindness
which could have been settled and would have established a precedent for
all prisons in this country. Instead, the issue of whether disabled prisoners
are covered by the ADA dragged on through the courts until this June, when
the U.S. Supreme Court ruled that they were indeed covered under the ADA.
A Justice Department negotiated settlement years ago would have provided
Johnson and other blind inmates access to fundamental services provided
for sighted inmates. Now that's still not happening (see sidebar).
Car rentals
In April 1992 when we arrived at the Phoenix airport accompanied by
a sighted friend and went to pick up our previously-reserved Dollar Rent
A Car, we ran head-on into one of those unanticipated cases of rank discrimination.
As blind people, we wanted to rent the car on our credit card and have
our friend drive. The clerk at the counter, even after consulting a supervisor,
refused to rent to us.
When we pointed out this was a violation of the ADA, they still refused
to reconsider their position. Fortunately, we were able to rent a car from
Budget which had no such discriminatory policy.
One month later we filed a formal complaint with the Depart-ment of
Justice under Title 3 of the ADA against Dollar Rent A Car. In June we
received acknowledgment of the complaint and a case number. In August we
received a call from the investigator working on the case giving us her
name and phone number. In October we called and were told the Department
had contacted Dollar and the company was working on the problem.
During this waiting period we tried to rent a car from Enterprise and
ran into the same problem. We filed another formal complaint with Justice.
But this case was given to another investigator at the agency, rather than
the one working on the Dollar case.
What's interesting in dealing with the Department of Justice is their
unwillingness to put anything in writing. Aside from the acknowledgment
of the complaint and the assigning of a case number, we never heard from
them on our Dollar complaint. Fortunately, a friend caught a report in
the news that, according to the Department of Justice, Dollar Rent A Car
would now rent to people with disabilities having a credit card who could
not obtain a driver's license because of their disability. It seemed we
had won.
The Department of Justice hadn't bothered to tell us.
We had not anticipated the vagaries of the federal justice system.
More than a year after settling the Dollar case, the Department notified
us they were dropping the Enterprise complaint. Enterprise, they said,
had agreed to modify its policies to rent to disabled individuals with
credit cards who could not obtain licenses because of their disabilities
- except in those states prohibiting rentals to anyone not having a valid
driver's license. In California, we have been able to change the regulatory
language to permit rentals to individuals with credit cards unable to qualify
for a license because of a disability; but to get full compliance from
Enterprise, we would have to change existing state laws being used to continue
Enterprise's discriminatory policy.
What we can't understand is why the settlement with Dollar did not apply
to all car rental agencies. And nobody at the Department of Justice has
yet bothered to explain it to us.
Zoo access
In November, 1993 an epileptic woman with a service dog was barred from
bringing her canine assistant into the San Diego Zoo. She filed a Title
III complaint with the Department of Justice. In California the state civil-rights
code mandating nondiscrimination on the basis of disability specifically
permits zoos to deny access to disabled people accompanied by guide, hearing
and service dogs, based on a number of myths (see sidebar.)
However, zoos are public accommodations, and, under Title III, disabled
people are guaranteed the right to be accompanied by their assistance dogs
in places of public accommodation. And the preamble to the ADA notes that
when state and federal laws conflict, whichever provides greater protection
to the rights of disabled people should take precedence. To us, board members
of IAADP, the International Association of Assistance Dog Partners, this
looked like an ideal case to test this position.
However, the Department did not seem inclined to litigate. The action
taken on the zoo issue is an excellent example of what might be thought
of as the Department's motto: "Let's negotiate, never litigate!"
The DOJ lawyer investigating# the complaint asked us to provide him
with background information. Ed wrote to him on in late 1993, explaining
zoo policies and the myths used to deny access. He explained that we had
recently participated in a ceremony in the aviary at the Fresno, California
Zoo; that the zoo director was there and that birds flying loose were interested
in our three dogs, but did not sustain trauma, injury or death. Ed pointed
out that the aviary at the San Diego Zoo was one of the areas from which
zoo officials wanted to exclude us.
But sure enough, when the settlement was made, the aviary, as well as
several other areas of the zoo, were declared off-limits to disabled people
with assistance dogs.
In the world of those partnered with assistance dogs, zoos and hospitals
remain a fuzzy area in which many of the issues noted in Ed's letter still
rage - recently, DOJ produced a document on "Frequently Asked Questions
About Service Animals" - yet issues pertaining to access in zoos and
hospitals were not addressed.
We learned that Marc Dubin, the Department lawyer involved in the San
Diego zoo case, was going to do a three-hour presentation on the ADA at
the joint ADI\IAADP conference in July 1994, we thought this would be a
great opportunity to learn more about cases involving assistance dogs (or
what the Department refers to as "service animals"). ADI, Assistance
Dogs International, is an organization of programs training guide, hearing
and service dogs, and IAADP, our cross-disability consumer advocacy organization
of disabled people partnered with guide, hearing and service dogs.
But Dubin and his associate from the Department only did a standard
presentation on the ADA and its various titles. When we asked about the
number of complaints filed with the Department involving assistance dogs,
Dubin replied that he had "no idea." To us, it seemed inconceivable
that the Department would send a representative to a conference of providers,
trainers and handlers of assistance dogs who could give participants no
information about the Department's activities in that area. But that's
exactly what happened
A month into 1998, Ed wrote to Liz Savage, Counsel to the Assistant
Attorney General for Civil Rights and Disability Community Liaison, in
his position as president of IAADP to discuss the Department's response
to assistance dog issues. IAADP and ADI have developed a joint committee
to approach the Department, but to no avail. Despite Ed's letter, and the
several subsequent voicemail messages he left, he's received no response
to date.
Willie Johnson still gets no accommodation
Yes, the U. S. Supreme Court has ruled that U.S. prisons - and prisoners
- are covered under the ADA. Has that made a difference for blind prisoner
Willie Johnson? No.
Johnson is still being denied materials in braille, Eames said as this
issue was going to press. The prison officials' rationale this time seems
to be "if we can't read it, and we can't tell what it is, then he
can't have it," says Eames - an attitude that Eames says sounds like
it violates Johnson's First Amendment rights, not to mention the ADA.
Isn't this illegal? No doubt. But the Justice Department isn't stopping
them. So prison officials will continue to discriminate. Supreme Court
or no.
- Thanks but no thanks
- At its convention this summer, members of the National Federation of
the Blind voted to "opt out" of a setlement brokered by the Department
of Justice with the state of Hawaii over bringing guide dogs into the state.
While the settlement would allow blind people to go around Hawaii with
their guide dogs rather than quarantining the dogs for 30 days (as had
been required before the suit), dog owners would still not have true freedom
to travel. They'd have to agree to stay in certain hotels. They can't go
into anyone's home with their dog if the hosts have pets. Thanks but no
thanks, said NFB members.
The case was filed in 1993 against the state of Hawaii by Guide Dog
Users Inc, a group affilated with the American Council of the Blind, calling
the quarantine discriminatory. A federal judge in Hawaii, said Eames, "summarily
dismissed" the suit, saying that since Hawaii was a rabies-free state,
"state interest" superceded the ADA.
No it doesn't, said the 9th Circuit Court of Appeals, saying that the
case had to be tried as an ADA case. (Along the way, the case had turned
into a class-action suit for all guide-dog users.)
In stepped the DOJ, said Eames, "offering to help." They "brokered
this horrible, horrible settlement," said Eames, who believes that
the suit should have been won by the litigants.
- Thurmond targets ADA:
- Bill seeks to exempt prisons
Warning that prisoners would "file an endless number of lawsuits
demanding special privileges" if the law weren't changed, Sen. Strom
Thurmond (R.-SC), joined by fellow reactionary Sen. Jesse Helms (R. - NC)
introduced a bill in July to amend the Americans with Disabilities Act
(and the Rehabilitation Act of 1973) to exempt state and local agencies
operating prisons. The U. S. Supreme Court ruled in June that prisons were
covered by the ADA.
Thurmond insists the ADA has had "unintended consequences."
Managing prisons is " an activity traditionally reserved to the states,"
he says.
The National Council on Independent Living see the bill, S 2266, as
an attempt to carve out "less worthy" groups from the ADA's protections.
It has been referred to the Senate Committee on Labor and Human Resources.
More on discrimination at zoos
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