The U. S. Department of Justice's Disability Rights Section is well funded and well staffed. It has a budget of nearly $10 million a year. Yet its attorneys do not, for the most part, have disability rights backgrounds or experience. Few of them have disabilities. Charged with enforcing the Americans with Disabilities Act and other disability rights statutes, it has filed few lawsuits, focusing instead on mediation and negotiated settlements. And its own offices are ridden with architectural and communications barriers significant enough to themselves engender an ADA lawsuit. These are the findings that emerged from the investigative report, "Justice Undone,"in the current isse of Mouth magazine.
Mouth''s report was based on interviews with a number of named and unnamed sources within the Department, including former disability rights section investigator and longtime disability rights activist Sharon Mistler, now retired, and former Department attorney Sara Kaltenborn. Mouth's report follows that magazine's emphasis on the interview: Interviews with Kaltenborn, Mistler, Section Chief John Wodatch, Department liaison Liz Savage and disability rights attorney Steve Gold.
Sources inside and outside the Department of Justice who complained to Mouth were angriest that the federal agency simply failed to enforce disability rights laws. Not just the Americans with Disabilities Act, but Section 504 of the Rehab Act and the 1980 Civil Rights of Institutionalized Persons Act (CRIPA.)
"The ADA and CRIPA and the Rehab Act are as real as any other laws on the nation's books," wrote Lucy Gwin, editor of Mouth. "Congress gave responsibility for enforcing those laws . . . primarily to the U.S. Department of Justice. The Department is the big gun in our battle for liberty, equality, justice. But this big gun is, for the most part, silent."
"The Department should be bringing landmark disability rights cases," Kaltenborn told Mouth. "It doesn't use its big guns." Indeed. In the 7 years following the ADA, the Department of Justice has filed, on its own initiative, exactly three lawsuits:
U.S. v. Illinois, filed in December, 1993 concerned "firefighters and police officers with disabilities denied admission to pension funds." A consent decree was entered in August, 1995.
U.S. v. Mordant, filed Oct. 4, 1993, concerned a dentist who refused to treat persons who were HIV positive. The court denied a motion to dismiss; the two whom the dentist had refused to treat ultimately received $60,000 each in damages.
U.S. V. Ellerbe Becket, filed just last fall, suing the firm "for designs of sports facilities without providing wheelchair seating locations with lines of sight over standing spectators."
"Most of what has happened has been settlements," Disability Rights Section Chief John Wodatch conceded in an interview with Ragged Edge. The Department had no choice, he insisted: an Executive Order required them "to try to get voluntary compliance, to negotiate, before we go to court."
Executive Order 12778, issued by Bush in 1991, and Executive Order 12988, issued by Clinton in 1996, "applies to everything the Department of Justice does: race, color, national origin, sex," said Wodatch. "We can't go into court until we've made every effort to settle something voluntarily."
The reason there are more lawsuits under other civil rights laws, he said, was that "in the race area right now, people don't settle.
"In our area, people are - well, I have a variety of explanations, some good, some bad ," he said. "We show up and people say, 'Oh, that's what this law means! We didn't understand! We'll do what you tell us!' when the truth is that they knew what it meant; they just didn't think they'd get caught. Once they get caught, they settle.
"That's not always the case," he went on, "and we have had some litigation. We've brought, since we've been in existence, probably about 100 cases."
Yes, but. As it turns out, all but three were cases which someone else filed first - the Department of Justice entered as an "amicus" or ""intervenor," after someone else had initiated the suit.
The Justice Department can bring lawsuits on their own. Why they file so few under the ADA remains somewhat of a mystery.
A number of sources Ragged Edge talked to said that the Department had to be pressed hard to enter some cases at all. The Minneapolis- based architectural firm Ellerbe Becket - one of the three cases in which the Department initiated a lawsuit - was sued first by the Paralyzed Veterans of America for failing to build sports stadiums with seating so people in wheelchairs could see the action on the field. Shortly thereafter, the Department filed its own suit against the firm.
Kaltenborn told Mouth she thought that the reason the Department didn't push things was "fear." "I think the [Department's] enforcement policy on disability rights is this: You make a damn nuisance of yourself, bothering little people who have no real power to fight back and no real interest in violating the law. And that generates statistics for your Status Reports [quarterly publications issued by the Department]. You don't want to antagonize anybody who has any power. . . . Anybody who's really blatantly violating the law is not going to cave in. Therefore you can't go up against them."
Wodatch confirmed that the Department did indeed hear threats from firms like Ellerbe Becket. And those threats, he said, had to be considered. First the firm had arrogantly argued that architects weren't covered by the ADA, and filed a motion to simply dismiss the case. (The motion was denied and the case is proceeding.)
Though Wodatch was at pains to point out that "we can't be too afraid to enforce the law because then you don't have the law" and that "We have to make the most of the time we have," he added that this "doesn't mean you have to be foolish."
"There are very few disabled people who have the money to go out and hire a lawyer," Mistler told Mouth. "No cost - that's the biggest reason people file [complaints] with Justice."
One of the accusations repeatedly leveled at the Section by disability advocates is that there's a huge backlog of formal ADA complaints - "boxes and boxes of them," as one source put it. While Wodatch insisted that this was no longer the case, he did stress that "We have been just inundated with complaints.
"We didn't have very good procedures before. We have better procedures now," he said. Complaints would now be dealt with, said Wodatch, within 12 weeks.
A 1970 lawsuit settlement (Adams v. Richardson), Kaltenborn told Mouth, required the Office of Civil rights at HEW (the Department Disability Rights Section's predecessor) to either resolve a complaint or issue a "letter of findings" within 180 days of receipt. Ironically, this effort to force accountability has proved a stumbling block to enforcement . It created "an enormous workload of little, piddly cases," said Kaltenborn. And "the attitude developed that 'if you don't have a complaint, you can't do anything about it.'"
According to Kaltenborn, the Disability Rights Section has that same mindset.
"You'd read an article in the paper [about some disability rights violation] and say, 'this is a great case. We ought to go after this.' And the answer would be, 'No, we can't. We haven't got a complaint."
In fact, the Section does not have to receive a complaint first in order to pursue wrongdoing. It can initiate a "compliance review" on its own, said Wodatch. And this can lead to a lawsuit. But, he said, do too many of these, and people will complain that the Section isn't handling enough complaints.
We got 6,000 pieces of mail last year that we had to go through and decide whether they were complaints or not." The figure Wodatch gave, was, no doubt, supposed to show the burden of an excessive number of complaints. In fact, this breaks down to fewer than 30 pieces of mail a day. When one considers that there are easily thousands of access illegalities in any major city today, thirty complaints a day is hardly a drop in the bucket.
In fact, most disabled people do not file complaints. And sending a complaint to the Department does not mean that the Department will file suit - or even investigate.
Kaltenborn told Mouth that "While people may want to have their complaints processed, I'm sure they would prefer more effective enforcement tactics."
An important reason for the Department of Justice to file lawsuits, Mistler told Mouth, was "to show pattern and practice." "For instance, if somebody filed a complaint against a hotel in North Carolina, there may be other complaints against that hotel chain in other parts of the United States," Mistler explained. "It's more significant if you can go to that chain and say, 'we've had x number of complaints against you.' "
The Department, with its access to numerous complaints about access violations all across the country, is in a prime position to do this very thing. "And the government has really beefed up the staffing at Justice," says Mistler. "You have plenty of lawyers who can do that.
"But they don't," said Mistler. "For the most part, they don't."
According to figures furnished by the Department of Justice, Mouth reported, the Disability Rights Section funding of ADA enforcement doubled - from $2.2 million in 1991 to $4.6 million in 1992; then nearly doubled again in 1993, to $8 million. In 1997, the budget was $9,253,000.
"It hasn't increased in the past two years, but I think it's close to around $10 million a year. That's pretty good, given the budget climate we have," Wodatch agreed. Though Congress hasn't approved budget increases the past 2 years, Wodatch said theirs was "one of the biggest sections in the Civil Rights Division now, in terms of personnel and budget both." There are 85 people in the Section, Wodatch said; of those, 24 were staff attorneys. And in January Clinton once again proposed more funds for enforcement.
The Department, Mouth reported, had done "no outreach to get disabled people on the enforcement staff." Lawyers Mistler had to interact with, she told Mouth, "had no idea . . . that there are [different] types of learning disabilities and therefore different types of accommodation, depending on the disability. Same for blindness, and varying degrees of hearing. They didn't even know this, and they didn't have to go through any training to learn it. " Mistler said that when she questioned this, she was told that "they learn by doing the job."
"Some of them have worked in disability rights for 20 years," Mistler said, "and they still don't get it."
Wodatch admitted that, although "early on we did a lot of that; we sent our new attorneys to DREDF's trainings - almost all of them" - in the years after 1994 there had been "not much" disability training whatsoever.
"The Disability Rights Section has a lot of money and a lot of people," Mistler told Mouth. "What they don't have is a consciousness of what is important to disabled people."
When Mistler, an investigator, noted that a case should be referred to the Architectural and Transportation Barriers Compliance Board - because a federal building was involved - "my supervisor," she told Mouth, "sent back the intake form with red marks all over it: 'Who in the world is the Architectural and Transportation Barriers Compliance Board and why in the world would we want to send something to them?'"
"We had a wonderful case against a major bank in Missouri," she continued. "They were putting in hundreds of new ATMs and they were doing it wrong."
"The Disability and Business Technical Assistance Center in Missouri caught it and couldn't convince the bank to do it right, said Mistler. Then somebody filed a complaint with the Department
"It was perfect timing," said Mistler. "A perfect case. The ATMs had not yet gone in; it was going to affect a great number of people; it was one of the biggest banks in the region."
The investigative unit where Mistler worked started to work on the complaint, she said, but the Department lawyer assigned to the case "there again, didn't understand the significance of ATMs" to disabled people. By the time the Department finally got around to the case, she said, "the bank had already installed those ATMs. They had never even received a letter from Justice" suggesting there might be a problem.
"Not even a call."
But "the premiere person in the [Civil Rights] Division running disability policy is a person with a disability," Wodatch pointed out. This is Liz Savage, who Wodatch called "the counselor to [Acting Asst. Attorney General for Civil Rights] Bill Lann Lee for disability policy." Savage, who was involved with passage of the ADA, is referred to as the "disability community liaison." Her presence, activists charged in Mouth, hasn't seemed to help enforcement one whit.
Wodatch says the Department now has "investigations open against Greyhound on the issue of facilities that they stop at and use being inaccessible, and on drivers not providing assistance in boarding and disembarking." Wodatch calls the investigation "very important" and hopes that "within the next six months or so, something can be resolved.
"We are going to negotiate with them, says Wodatch. "Negotiation doesn't always mean we won't file suit."
Mediation - formally called "Alternative Dispute Resolution" - is, as Wodatch put it, the "rising new star" in legal circles. The Section got a grant from the Key Bridge Foundation to refer cases to mediation - because, says Wodatch, "we knew there were a lot of cases we couldn't get to." But he knew, he said, that "a lot of people with disabilities think this second-class citizenship."
"There's this push toward mediation," Mistler told Mouth, "so there won't be a backlash."
"Alternative dispute resolution has its place," Kaltenborn told Mouth. "But tell me: alternative to what? It's an alternative to law enforcement.
The business of the Department of Justice, Kaltenborn said, was "law enforcement." Kaltenborn called alternative dispute resolution "a total abdication."
No, mediation was "not enforcement," Liz Savage conceded in an interview with Mouth. She called it "an agreement between the two parties. . . . For example, a restaurant agrees to . . . install a ramp. . . . If there's non-compliance, the complainant can come back to us."
Mediation was "effective," Savage told Mouth, "in 85 percent of the cases." But Kaltenborn says that mediation allows the Department to "avoid defining compliance. Instead of saying 'this is readily achievable and that is not,'" she said, they avoid "having to answer the hard questions."
"In mediation, each side gives up something," Mistler said. "And that's really good for the company that's not in compliance with the ADA, but what is it to the person who's being denied their civil rights? What are they giving up?"
Mistler told Mouth that from her observation of internal reports, the Department of Justice did not press mediation as strongly with other civil rights groups - women and blacks - as it did with disabled people. And yes, it was true that people could then file complaints or bring suit themselves. But, said sources, people rarely did that. Nor did disabled people file suits on their own. Often they couldn't afford to, and attorneys often wouldn't take the case, because there was no payment for damages. It is a vicious circle, And the Department of Justice, says Mouth, isn't helping.
Perhaps the most troubling - and damaging - accusations against the Disability Rights Section are that it blatantly fails to provide access and accommodation in its own offices, to its own staff.
Access violations in Section offices, says Mouth, "ranged from the storage room that you couldn't even get into, to the Xerox machine in it, to the mailboxes that were too high, to the fax machines, to the hallways where you couldn't pass somebody because of boxes blocking things."
Some staffers made their offices inaccessible, when things could have easily been handled differently. "They arranged their furniture so you could not enter their offices, close the door and have a private conversation."
"The desk where the receptionist sits is too high."
"There is a book where you have to sign up to use the conference room. It's on a high ledge between the two secretaries in the front office, and I couldn't get to it."
Wodatch seemed defensive on the accusation about the boxes in the hall. "We still have some boxes in the halls, although we are making an effort to get rid of them,"he said. " In terms of accessibility, we have what the new construction standards say is the appropriate amount of turn space" Although, he added, he feels, too, that they shouldn't be there. As to charges about other access violations in the offices, he simply responded by saying that "basically it's accessible but it's by no means perfect."
Access complaints that "have merit" "have been changed or are being changed," he said. "Sometimes it takes a long time to get them changed," he added. "The thing we have to work on the most is having the government systems respond more quickly.
"It's taken a long time to get some changes," he went on. "In the past year we finally got them to put automatic doors on the restrooms.
"But another part of the government just ordered new computer printers [for our office] - humongous things that are out of the reach range of someone in a wheelchair. So what we have done is not assigned those to any person in a wheelchair."
For a long time, sources charged, the Section had no adequate sign-language interpreters available.
Wodatch readily admitted the problem: They'd relied on outside firms to provide interpreting services, he said, and "that proved to be, first of all, very costly, and very inefficient.
"Because the way the government works, we couldn't just use one service; we had to use a variety of services," he continued. "And we would sometimes get interpreters who were less than proficient.
"We had an investigation of Walt Disney World. And you have a meeting where you have the attorneys there, and the investigator is a person who is a late-deafened adult, and I could tell she couldn't really tell what was going on, but we couldn't stop the meeting; we had the officials from Disney there. It was really very difficult.
"We have a number of deaf employees," he continued, "and we needed interpreters just for the interactions in the office. If all of a sudden we had a special meeting called for the next day, or if it was going to be an evening meeting, we couldn't get an interpreter in that short a period of time. That created staff frustration."
Wodatch said that within the Section, with those things over which he has control, "I've tried to use every kind of opportunity that the government provides." He mentioned "job sharing" and "working at home - which we pioneered for the Division," he added.
"I finally got permission to hire another person, and so now we have two fulltime interpreters," he said. "I'm glad now that we have hired our own people. They're here, we're in charge of their time, and it's cheaper."
Wodatch could not just make decisions to get accessible equipment or provide accommodations if they cost money, he told us. "I have certain leeway, but the basic decisions are done Division-wide, not by Section."
Whether this picture of Wodatch having to beg for access from his own Department rings true or not, it is a useful symbol. A government entity unable to even muster up, even within its own walls, a desire to obey either the letter or the spirit of the rights laws it is charged with enforcing can hardly be looked to for protection of rights. Nor, does it seem, that can be much vision emanating from an office that has taken years, it seems, to figure out that staff oughtn't to be allowed to arrange office furniture to block access -- or to have on staff people like investigators and attorneys and support staff who have as part of their job requirement a working knowledge of American Sign Language.
As Mouth's investigative report shows, disabled people really have very few options open to them for getting satisfaction under the ADA. The attorneys housed in the Disability Rights Section of the Department of Justice who should be enforcing the law seem less than committed to it, Mouth's report shows. Disabled people don't have these attorneys pushing their rights very hard. On their own, most disabled people can't afford attorneys, and the law itself provides no money for attorneys' fees.
They can file a complaint with the Department, but chances are it won't get very far, either.
But there is another route, Mouth reports: Disabled people can sue ADA lawbreakers on their own. Without an attorney. This is called a "pro se" lawsuit (from the Latin meaning "for oneself").
"We have a form for them to do it themselves," said Steve Gold. "They can file their own lawsuit. This was done solely because there are no lawyers who want these cases."
ADAPT activist Mike Auberger, whose 100 complaints the Department has reportedly not yet touched, is, Mouth reports, doing just that.
Story continues ...
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