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Assistant Attorney General Thomas E. Perez Speaks at the National Disability Rights Network 2012 P&A/CAP Annual Conference
BALTIMORE ~ Thursday, June 7, 2012

As prepared for delivery:

Thank you for the introduction.  I’m happy to be here this morning to talk about the Justice Department’s efforts to enforce the rights of people with disabilities to participate in core aspects of civic life.  In America, the phrase “Civil Rights” evokes powerful emotion, conjuring up visions of the 1960s, of Dr. King on the steps of the Lincoln Memorial, of hundreds of protestors on the Edmund Pettus Bridge, of students at lunch counters and university doors.

Similarly, individuals with disabilities faced every day the indignities of not being able to enter a hotel swimming pool or get on a public bus, and they were barred from attending schools and getting jobs.

Individuals with disabilities have organized to fight for their civil rights, incrementally working their way out from under the weight of immoral laws, misguided social mores and irrational fears, facing dozens of defeats for each victory.

The Americans with Disabilities Act literally opened millions of doors for individuals with disabilities across this nation.  This critical law had implications no less important or far-reaching than the landmark civil rights laws of the 1960s. 

In the two decades since its enactment, the ADA has revolutionized the way the rest of society thinks about individuals with disabilities, and it revolutionized the way that people with disabilities live in our communities.

But that doesn’t mean the journey is complete. 

There are those who still feel free to publicly state the opinion that because a ramp or an accessible piece of technology costs money, that is a sufficient reason to deny people with disabilities access. 

And they are not met with outrage, but are taken seriously – as if, even 22 years after the ADA and nearly 40 years after the Rehabilitation Act – the cost-benefit analysis were the key to civil rights.

In the Civil Rights Division, we still see every single day barriers facing individuals with disabilities that stand in the way of allowing all people to maximize the contribution they can make to society.  

I want to talk about a few of our priorities – physical access, technology, education, Olmstead, employment, transportation, housing, health care, and voting – and how those priorities infuse every section of the division.

Physical Access

In March of this year, the new ADA Standards for Accessible Design went into effect.  The new Standards, for the first time, include requirements for judicial facilities, detention and correctional facilities, and recreational facilities.  We expect the implementation of these accessibility standards to open up doors for full participation in both the responsibilities, such as jury duty, and the benefits, such as playing at city parks, of civic life for people with disabilities.  These regulations represent the most significant update and expansion of the legal requirements of the ADA since its passage 22 years ago.

Technology

We know that modern technologies can pose significant challenges, and we must ensure new technologies don’t leave individuals with disabilities in their wake.  One underlying theory of the ADA was that we wouldn’t make the existing world accessible all at once –but it would happen gradually – as old things were replaced with new things.  New technology is where the rubber meets the road for that theory.

Technology has revolutionized our economy and culture.  It has made communicating, obtaining information, entertainment, education and goods easier and more efficient.  But many of these technologies, from websites to cell phones, from ticket kiosks to TV set-top devices, are either in whole or in part inaccessible to persons who are blind and other people with disabilities.   

It is the position of the Department of Justice since the late 1990s that the ADA applies to websites.  Companies that do not consider accessibility in their website or product development will come to regret that decision, because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up.

Most recently, we have pursued accessible technology through a statement of interest in National Association of the Deaf, et al. v. Netflix, Inc., where we opposed Netflix’s motion to dismiss, arguing that the 21st Century Communications and Video Accessibility Act does not preempt application of Title III of the ADA to online services.  The Massachusetts District Court denied the motion to dismiss.

The department is also addressing technology accessibility in its rulemaking.  We issued an Advance Notice of Proposed Rulemaking on accessibility standards for websites and continue our work in this area.

Education

We are exercising our expanded ability to pursue complaints about discrimination in public, private, and higher education.  For example, in a number of contexts, we are challenging the argument that schools should have unfettered discretion to decide what accommodations to provide or permit, as long as they follow procedures.

Earlier this year, we filed an amicus brief on behalf of a public school student with a hearing impairment who asked her school to provide Communications Access Real-time Translation (CART). 

The department’s brief argued that Title II of the ADA requires the school to ensure that its communication with students with hearing and vision disabilities is equally effective as for other students, not just that they be able to benefit from the education.  This is a different standard than the IDEA FAPE standard.  In addition, under Title II, the school must provide primary consideration to the student’s choice of auxiliary aid.

In June, 2011, the department filed a statement of interest in the Central District of California in CC v. Cypress School District in support of a seven year old child with autism who was denied the right to bring his service animal to school. 

The department explained that students and their parents have the right under Title II of the ADA to self-determine whether to use a service animal.  The district court agreed with us and required the school to allow CC to bring his service dog.

We filed an appellate brief challenging a court’s decision to allow a school district to require a student with diabetes who uses insulin to attend a school with a nurse, rather than his neighborhood school.  The school argued that they had provided him FAPE and weren’t required to do more because, although the student had an insulin pump, he still needed adult supervision.

We argued that the school cannot rely on a blanket policy, but must conduct an individualized analysis; and that the school had to consider allowing an adult who is not a nurse to assist the student.  We are awaiting a decision from the court. 

We filed an amicus brief in the 8th Circuit in support of a medical student with a hearing impairment who needed CART in classes and an oral interpreter in clinical settings.  Not only did the school refuse to provide them, but prohibited the student from providing his own oral interpreter. 

Our brief argued that the district court erred by applying a standard requiring the student to prove that the denial of auxiliary aids effectively excluded him from classes.  We argued that the standard should be whether equally effective communication was provided.  In addition, we argued that the court should provide deference to the school’s decisions only as to academic standards (e.g., what the curriculum should be) and not to decisions about auxiliary aids.

We are also working to ensure that admissions and licensing testing – whether for higher education or business certification – are accessible to people with disabilities.  To that end, we require testing providers to offer tests in ways that “best ensure” that the test measures knowledge or skill and not disability.  We recognize that this standard is not co-extensive with reasonable modifications or effective communication, but may require more.

We are also exploring the implications of new charter and voucher schools on the education and integration of students with disabilities in public schools.

Transportation

Through a partnership with the Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation, over the past several months, the department has entered into settlements with approximately 20 over-the-road bus companies under Title III of the ADA to ensure that bus transportation for individuals with disabilities is accessible.   

Housing

We have a case right here against the city of Baltimore for mandating that substance abuse centers have to get special zoning permits when other entities don’t have to.  Judge Motz recently ruled that the city’s zoning ordinance was facially discriminatory and the city is drafting an amendment.

The Fair Housing Act and the ADA have specific accessibility mandates, and yet far too many developers continue to forgo their obligations, either knowingly or out of ignorance of the law, to make their developments compliant with the fair housing act and the ADA. 

In December, we reached a settlement agreement with Park Place Apartments, a 276-unit complex in Louisville, Kentucky, that had not made its complex fully accessible.  Under the agreement, the owners, developers, architect and engineers must retrofit the complex and pay $275,000 to compensate 29 individuals with disabilities.

The Housing Section also recently filed a lawsuit against the University of Nebraska for denying the reasonable accommodation requests of students with psychological or emotional disabilities to have emotional support animals in university housing.  While the ADA covers only trained service animals, the Fair Housing Act also covers emotional support animals.

Health Care

Access to hospitals and health care providers is a critical need for everyone, including individuals with disabilities.  Even with the Affordable Care Act opening up greater access to people with disabilities, as long as we have inaccessible medical equipment or hospitals that do not provide sign language interpreters, many individuals with disabilities will continue to be unable to access critical care.  This issue is a top priority for us, and we are working to leverage our resources to address the overwhelming lack of access in this area.

We are also challenging denials of health care to people with HIV.  We recently entered two settlement agreements with health care providers – a clinic treating a bunion and a chiropractor - who refused services to people with HIV.

Civic Life

Our Project Civic Access takes a holistic approach to access to all aspects of life in towns, cities, and counties all across the country.  Through Project Civic Access, we conduct compliance reviews of physical, communication, and policy accessibility throughout a community.  We have now reached 197 settlement agreements with 183 localities in all 50 states, the District of Columbia, and Puerto Rico.

Our Project Civic Access reviews have long focused on public facilities, including polling places, sidewalks, town halls, courthouses, health clinics, libraries,and parks, as well as 9-1-1 services,  alternate formats of public materials, and sign language interpreter policies for public interactions, such as with police.  We have also incorporated reviews of cities’ emergency management policies and procedures, to ensure that people with disabilities are included.  We also include accessibility of city websites.  We will soon be including reviews of local train and other transportation stations.

Olmstead

I cannot leave without discussing our Olmstead work.  You are our partners in this work and you know, more than anyone, that the first step toward civic participation for many people with disabilities is to get out of an institution and into the community. Olmstead has rightly been called the Brown v. Board of Education of the disability rights movement.  We have taken our responsibility to enforce the integration mandate very seriously. 

We reached a transformational settlement with the state of Georgia regarding its developmental disabilities and mental health systems.  We reached another transformational settlement with the state of Delaware regarding its mental health system.  We have intervened in a New Hampshire case brought by the New Hampshire Disability Rights Center challenging the state’s use of a psychiatric hospital and a psychiatric nursing home.  And we issued a letter of findings regarding North Carolina’s reliance on adult care homes to serve people with mental illness.  We have issued a letter of findings in Mississippi, challenging the state’s reliance on institutions for adults and children with mental illness and developmental disabilities. 

We’ve filed dozens of statements of interest in private cases – including many P & As’ cases.  And we reached a monumental settlement agreement with the Commonwealth of Virginia to transform its developmental disabilities system from one that relies on state-run institutional Training Centers to one that focuses on community based services.  A court will hold a hearing tomorrow to review that settlement.

Olmstead implementation is not just a theoretical exercise in moving resources from institutions to community providers.  Each case makes differences in the lives of thousands of real people and their families.  For example, in Virginia, the parents of a 21-year-old with multiple disabilities who has always lived at home expressed their gratitude for recently-received waiver services that allowed them to avoid institutionalization and to continue to allow their son to “enjoy his life to the fullest.”  Another parent, whose six-year-old daughter is one of approximately 7,000 individuals on a wait list for waiver services, described her joy in seeing that her child “thrives in the community” and her hope that her daughter can live in the community as an adult.  She added, however, that at present, her family and many others “live in crisis” waiting for needed services. 

In a recent Delaware monitoring visit, a Civil Rights Division attorney met with several people who, as a result of the agreement, have moved from Delaware’s state psychiatric hospital into their own apartments in the past year.  These individuals include a formerly homeless woman; a man who had many years of involvement with the criminal justice system; and a long-term psychiatric hospital resident.  Each of these individuals described the positive change that our agreement had made in their lives.  They said:

“I’m no longer invisible, people see you and say hi to you”;

“Independence means being able to accept friendship from other people”;

“I now have the right to just live and the freedom to open and close doors”; and

“Thank you for giving me back my life.”  

I want to assure you that our Olmstead enforcement activities are dynamic and ongoing.  We have several ongoing investigations, and are taking on new issues, including:  the segregation of children with disabilities, people with disabilities inappropriately in nursing homes, and the segregation of people with disabilities in day-time activities, including segregated work. 

With regard to employment, the division has expanded its Olmstead work to look beyond just where people live to examine how people live and spend their days.  Simply moving someone from an institution to a community-based residence does not achieve community integration if that person is still denied meaningful integrated ways to spend their day and is denied the opportunity to do what so many people do – pursue competitive employment in the community. 

And so, in federal court in Oregon, we recently filed a brief supporting Disability Rights Oregon’s clients, who asserted that Olmstead applies to individuals who seek integrated supported employment services but are instead placed by the state in segregated employment settings where they have little or no opportunity to interact with non-disabled workers or learn skills that would assist them in working in competitive employment.

Voting

I would like to conclude by discussing one of our most sacred rights – the right to vote.  In announcing that he was sending the Voting Rights Act of 1965 to Congress, President Lyndon Johnson said, “Many of the issues of civil rights are very complex and most difficult.  But about this there can and should be no argument.  Every American citizen must have an equal right to vote.  There is no reason which can excuse the denial of that right.  There is no duty which weighs more heavily on us than the duty we have to ensure that right.”  

Those words ring no less true for people with disabilities than for the racial disparities the Voting Rights Act was written to address.  However, people with disabilities did have to wait – the Voting Rights Act addressed disability only by allowing people with various disabilities to receive assistance "by a person of the voter's choice."  Not until 1984 did the Voting Accessibility for Elderly and Handicapped Act mandate access to polling places, and provide for the creation of permanent accessible voter registration sites.

The Americans with Disabilities Act of 1990 prohibited discrimination against individuals with disabilities and required that state and local governments make their programs, activities, and services, including voting programs, accessible.

The Help America Vote Act of 2002 requires voting systems to be accessible for people with disabilities, including requiring at least one electronic voting machine per polling place.

Against that background, I want to stress what the attorney general has himself recently and repeatedly emphasized: at the Department of Justice, our commitment to enforcing these laws, to expanding access to voting opportunities, and to preventing discrimination in our election systems, has never been stronger.  My colleagues and I in the Civil Rights Division at DOJ have both the privilege and the tremendous responsibility to preserve and protect these rights, and I’m happy to discuss with you today our current efforts to do just that, in a manner that is vigorous, fair, and evenhanded.  And we appreciate your partnership and collaboration in that effort.
 
NVRA

Among the matters that we have prioritized is vigorous enforcement of the National Voter Registration Act – the “Motor Voter” law.  Congress passed the NVRA to “establish procedures that will increase the number of eligible citizens who register to vote” and to ensure accurate and current registration rolls in federal elections.  
 
States covered by the NVRA must follow its requirements to make voter registration available to applicants at all driver license offices, at all public assistance offices and disability offices, and through the mail.  
 
Congress has tasked DOJ with the critical responsibility of ensuring that these mandates are met, and we will continue to devote significant resources to promoting access to voter registration and the accuracy of the rolls through comprehensive enforcement of the NVRA.
 
For example – in the last year, the department has brought its first two new lawsuits under Section 7 of the NVRA in eight years.  Section 7 requires that voter registration opportunities be made available at, among other places, state offices providing public assistance or disability services.  Congress specifically designed this provision to increase the registration of the poor and persons with disabilities who do not have drivers’ licenses and therefore won’t come into contact with the other principal places where voter registration is made available.
 
One of our lawsuits involved Rhode Island while the other involved Louisiana.  The Louisiana case is still being litigated.  But in the Rhode Island case, we reached an immediate settlement with the state so that it now is offering registration opportunities to all applicants for public assistance and disability services, and is also implementing a range of training, auditing, monitoring and reporting requirements.  
 
The impact of these changes has been remarkable.   More voters were registered in the first month after the settlement than in the entire previous two year reporting period. 

Let me give you some other specific numbers.  In the two year reporting period before the lawsuit, 457 voter registration forms were submitted by the four affected Rhode Island social services agencies.  In the first month after the agreement, 1038 forms were received.   In the second month, 1346 forms were received.  In the ensuing two months, a total of 1787 additional forms were received.  That is a total of 4171 newly registered voters in the four months after the settlement, as opposed to 457 in the two year reporting period before the settlement.  
 
These are remarkable differences, and they illustrate the critical importance of Section 7.  And these aren’t just statistics – these are actual people:  the working poor, people with disabilities, people who don’t regularly come into contact with DMVs and other common places to register to vote.  These are citizens in Rhode Island who were unable previously to participate in our elections, and now they are.  

Consistent with our dedication to using all possible tools available to us, our work to promote greater compliance with the NVRA is not limited to litigation to vindicate the right to vote.  Two years ago, for the first time ever, the department published on its website a document providing comprehensive guidance to state and local officials, as well as the public, regarding implementation of all of the requirements of the NVRA.  
 
We’ve received feedback that this guidance has been of significant value to state and local officials as well as to the public.  And we will continue to work with federal agencies that have been designated to provide voter registration services.
 
Physical Accessibility

The Division is vigorously enforcing the accessibility requirements of the ADA in the voting context as well.  Just last month, we reached a settlement agreement with the city of Flint, Michigan, to survey and make accessible all its polling places in time for the November election and to make accessibility a major factor in future choices of polling places.  As a result of a similar 2009 settlement with the city of Philadelphia, the city has made accessibility improvements at more than 500 polling places.

Our Project Civic Access compliance reviews have also focused on polling place accessibility.  We’ve required increased accessibility of polling places in 82 communities through Project Civic Access agreements.

It’s important to remember that polling places are generally not just places where people go on Election Day.  The rest of the year they are schools, recreation centers, and other public buildings.  So voting accessibility has impacts far beyond the voting booth.

As I consider the department’s accomplishments to date, and our plans for the future, I continue to take my inspiration from people with disabilities and their families.  These individuals express the harm of segregation and the value of integration more eloquently than any lawyer’s brief ever could.  They are the heroes of this civil rights movement.  And so, I end with the words of a family member who wrote urging the Court to approve our Virginia agreement.  This woman, who initially raised her son at home, very reluctantly sent him to a state institution for lack of community alternatives, and most recently has seen him make great strides upon returning to community living, told the Court:

“In my view, it is good for all of us to be able to see that people with disabilities are a part of our society and belong to us.  We can respect them, admire them, interact with them, have admiration and compassion for some of the challenges they face – and we can be inspired.  People with disabilities are part of us – and should not be put in isolation, unseen and unappreciated.”

Thank you for the opportunity to speak with you today.  I look forward to continuing to work with you.

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