Mouth asks, What's happened to our rights? |
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an interview with Steve Gold by Josie Byzek This interview first appeared in Mouth magazine in March 1998
Stephen F. Gold is the foremost attorney in the disability rights movement. He is co-author, with Diane Coleman, of the Not Dead Yet amicus brief quoted in 1997's Supreme Court decision. As attorney for Idell S. and Helen L., he sued and won against the state of Pennsylvania on grounds of the ADA for segregating people in nursing homes rather than providing them with attendant services in their own homes. He was the attorney in the Adapt v. Skinner public transportation case as well. Gold is in private practice in Philadelphia, Pennsylvania. |
What's the primary problem with the Americans with Disabilities Act?
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People don't know their rights. I
am amazed at the number of people with disabilities who do
not know what the ADA says, or what the regulations say. I
frequently get phone calls from people with disabilities
from all over the country who do not understand what the ADA
says, or how to use it. |
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Why is the enforcement of the ADA different from the enforcement of any other civil rights law? |
The ADA came about not after a vocal, visible, angry struggle for civil rights. It came about because an elite group thought it should be passed -- paternalistically, in other words. Consequently, there was not equal power in the passage. The
Chambers of Commerce were able to get what they wanted into
it, and insurance companies got what they wanted. The movie
industry got what it wanted into the ADA, so that you don't
have open caption-ing in movies, or any alternate format.
The local government entities got their three cents' worth
in. The
ADA won't even pay for monetary damages for the injury done
when civil rights are violated. That's a humongously big
compromise on the ADA. I don't know another civil rights
statute where a minority whose civil rights are violated
cannot get damages for that injury. But the other thing
which is really critical is that the only entity that can
get damages awarded under the ADA is the U.S. Department of
Justice. And Congress even set very specific amounts that
they can get. |
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What's the best part of the ADA itself? |
Just starting right at the top [in the findings of the ADA] Congress says, 'Historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.' Those findings should be used by people as a trumpet, as a clarion. Disability
rights are trivilialized by most people. They are not
considered civil rights. The fact that a person using a
wheelchair cannot get up two steps into a store is not
looked at as a violation of that person's civil rights. Or
the fact that people can't get on the bus. Or that movies
aren't captioned or that elevators are not brailled -- those
are not looked on as violations of civil rights. Those are
perceived by the public as inconveniences or technological
difficulties. |
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But violators always say it wasn't intentional... |
What Congress found is discrimination in such critical areas as access to services and access to public accommodations. That made those two steps, that curb without a curb cut, violations of civil rights. Pre-1990
it might have been unintentional. But when Congress passed
the law, it became the law. Period. |
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It seems like the ADA works best in employment cases. |
Employment? Employment is a losing battle. Let
me tell you an entity that has been cowardly and im-potent.
Under Section 503 of the Rehab Act, since 1973, every single
business that gets a contract with the federal government
was supposed to have an affirmative program for hiring
persons with disabilities. The U.S. Department of Labor has
never, ever, enforced that. The
federal government has totally abdicated responsibility for
the civil rights of people with disabilities. We see it with
the Department of Labor under Sect. 503, we see it with the
Department of Transportation in regulating Over-the-Road
buses, and with paratransit. The DOT does nothing to enforce
the ADA. People can bring a lawsuit. We have that pro se complaint, so people can file their own lawsuit. That was done solely because there are no lawyers who want to do these cases. |
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But the ADA doesn't call for equal access in all cases. It's program access, right? |
That's not what the ADA says. That's a misinterpretation. Let's look at the law. First,
when you use the word 'program' you're in Title II, which
applies to government. That term is not involved at all in
Title III. Let
me put it in concrete terms: the lottery. Let's assume that
in 1990 there were 1000 lottery outlets in Pennsylvania.
When the regulations were promulgated, you had to look at
the lottery and say, when viewed in its entirety, is it
readily accessible? So you have to say, of that 1000, how
many were accessible, and where were they located. You'd
have to do a geographical distribution. Let's assume for the
moment that 333 were accessible and they were distributed
geographically equally, so people could agree that when
viewed in its entirety, the lottery was accessible. Very
few people understand Title II program access. If you did a
survey, most people would say that if the new 100 lottery
outlets in my example were all inaccessible, that would be
okay because the program may still be accessible when viewed
in its entirety. |
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You talk a lot about segregation. |
The Helen L. lawsuit was intended -- besides getting some people out of nursing homes -- to get people to begin to talk about segregation. Even though Congress talked about segregation, it's rare to hear people with disabilities talk about it. People
who cannot get into that restaurant and eat with me, they're
discriminated against, as am I when I can't have lunch with
them. When people can't sit next to other people in the
movies, or they get put in the back row, that's
segregation. People
have a right to be segregated if they choose. If people want
to go to a school where only deaf people are, or where
people only use ASL, they have that right. They cannot be
made to do that. Under Title II, the state cannot make them
do that. In Title III, it's the private business; the
restaurants and stores cannot make themselves
inaccessible. |
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You say that assisted suicide is against the Americans with Disabilities Act? |
Surveys show it. When people with disabilities go to their doctors, doctors cringe; they can't believe someone lives like that. People
with disabilities are not going to be given the same suicide
prevention interventions as non-disabled people. That's the
more critical point. If physician-assisted suicide were permitted, the discrimination against people with disabilities would be much worse. Doctors are going to go, subtly or not so subtly, out of their way to urge people with disabilities to off themselves. |
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Steve Gold has made statements on the Olmstead case which are pertinent to the freedoms of all Americans with disabilities. To read them, click here. To read excerpts from the amicus brief Steve Gold wrote for ADAPT, NCIL and TASH in the Olmstead case, click here. |
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